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The opinion of the court was delivered by Harman, C.: In November, 1967, defendant John C. Caldrone was convicted by a jury of possessing burglary tools in violation of K. S. A. 21-2437. In the same trial he was acquitted of a charge of attempted grand larceny from a truck. Defendant appealed his conviction upon the burglary tool offense to this court with the result that, because of failure to instruct the jury as to the requisite intent, the judgment was set aside with directions to grant a new trial (State v. Caldrone, 202 Kan. 651, 451 P. 2d 205). New trial has now been had and defendant was again convicted of the offense of possession of burglary tools. He again appeals. We will state the facts pertinent to the specifications of error as each is discussed. First the appellant challenges various orders of the trial court overruling his objections and request for instructions in connection with the admission into evidence of the circumstances immediately preceding his apprehension and arrest in the case. The state’s evidence revealed the following: At about 5:00 a. m. on September 3, 1967, a Mrs. Nickol, a resident of Prairie Village, heard noises outside her house. She looked out and saw a man pounding upon the side of a panel truck parked in her neighbor’s driveway. She awakened her husband who called the police. A patrol car containing officers Morrow and Smith was cruising in the neighborhood and arrived almost immediately. The police car threw a light on the man. Mrs. Nickol and the two officers observed he was wearing dark trousers and a light-colored shirt or jacket. The man ran between two houses. Officer Morrow jumped out of his car and ran after the man but the man cut back toward the street and eluded pursuit in the darkness. As Officer Morrow returned to the street he heard a car door slam, a motor starting, and the sound of a car moving. No lights were visible on the car. It moved down the street past four houses and pulled into a driveway to turn around. Officer Morrow then caught up with the car, drew his revolver and stopped the vehicle. Appellant was the driver. He appeared to be out of breath. He had on dark trousers and a light green sweater. Appellant stated to the officer he had been drinking and driving around, had become sleepy and had pulled his automobile over and fallen asleep. Officer Smith returned to the scene and appellant was arrested and his car searched. The alleged burglary tools were found inside the vehicle. At appellant’s first trial the prosecution’s evidence revealed the panel truck was equipped with a burglar alarm connected to its doors and brakes; a hole had been cut in the side of the truck that night; the truck contained cigars of a value of about $3,000; three boxes of cigars were missing from the truck; none of the missing boxes was in appellant’s possession when he was apprehended. At the second trial these facts were not revealed to the jury but at appellant’s request were presented to the trial judge outside the presence of the jury (a different judge had presided at the first trial). Appellant sought throughout to keep from the jury any evidence from which it might be inferred he was the man seen pounding on or standing by the panel truck. Failing this through various adverse rulings made by the court at the request of the prosecution, appellant sought an instruction to the jury that he had been charged with and acquitted of attempted grand larceny of cigars from the truck. The trial court denied any such instruction or information going to the jury and denied an instruction limiting evidence of events prior to appellant’s arrest by Officer Morrow for the purpose of showing why the police were in the area. Appellant’s counsel did state to the jury appellant had been charged for crime against the truck and had been acquitted but the court, at the prosecution’s request, admonished the jury to disregard counsel’s statement. The trial court also refused admission of appellant’s proffered evidence that police laboratory inspection and tests indicated the tools found in his automobile could not have made the hole found in the truck. The basis of appellant’s contention really is he was prejudiced by reception of evidence as to his presence at and connection with the truck when actually he had been acquitted in the first trial of attempted grand larceny from the truck, which he was not permitted to show. Appellant urges the prosecution was barred from showing what it did by reason of the doctrines of double jeopardy, res judicata, collateral estoppel and irrelevancy of evidence. Appellant argues the prosecution in presenting its case and opposing his requests took contradictory positions prejudicial to him. The various rulings complained of may be considered together. Appellant contends that under the facts presented the alleged offense of possession of burglary tools was a lesser included offense to that of attempted larceny and his acquittal of the latter should bar further prosecution for possession of the burglary tools. He points to language in our first Caldrone opinion, in rejecting the contention there made of improper joinder of offenses in a single trial, that under the facts disclosed the offenses of attempted larceny and possession of burglary tools are corollary to each other and a part of one comprehensive plan. That which was said does not justify the conclusion sought to be reached by appellant. We did order new trial on the burglary tool charge and the fact remains that the elements constituting the offenses of attempted larceny and possession of burglary tools are not the same. The two are separate and distinct offenses. That two offenses are alleged or shown to have been committed at or substantially near the same time so they may be tried together does not change their essential relation to each other. Appellant has never been placed in jeopardy more than once for the same offense. Appellant argues it has been conclusively litigated by reason of his acquittal on the attempted larceny charge that he was not the person seen near the panel truck and pursued in the darkness by the police and that evidence giving rise to a contrary inference should not have been permitted. The doctrines of res judicata and collateral estoppel urged by appellant have been accorded judicial recognition in the field of criminal law. Without going into them we have examined the precedent cited by industrious counsel but find none applicable under the facts here presented so as to compel the conclusion the prosecution was foreclosed from showing appellant’s presence near the truck on the night in question. The jury instructions contained the statutory definition of burglary tools: “. . . any instrument or any other mechanical devices whatsoever, nitroglycerine or other explosive, designed or commonly used for breaking into any vault, safe, railroad car, boat, vessel, warehouse, store, shop, office, dwelling house, or door, shutter or window of a dwelling of any kind. . . .” (K. S. A. 21-2437.) The statute does not list a truck as one of the structures which may be the subject of burglary. Hence the tools found in appellant’s car could not in any event be considered as burglary tools in connection with the truck and the state’s evidence advanced no such contention. The jury was never advised of the hole cut in the side of the truck. Hence there was no occasion to tell them appellant’s tools could not have cut the hole. In State v. Hart, 200 Kan. 153, 434 P. 2d 999, we pointed out that an intent to use burglary tools in a particular or specific burglary is not required and the intent is sufficient if it consists of a general purpose to employ the instruments in the course of burglarious episodes whenever and wherever opportunity might present itself. We think evidence of appellant’s presence and activities, including flight, in a strange neighborhood at night (he was shown to be a resident of Kansas City, Missouri) from the time that presence was first noticed was relevant evidence on the question of the intent with which he possessed the tools in question. Proof of intent may be inferred from the circumstances which attend the possession of burglary tools (State v. Hart, supra). We hold the trial court did not err in any of the rulings made in connection with appellant’s acquittal of the attempted larceny charge. Appellant challenges the terminology used in certain of the instructions given. He argues they were defective in that they failed to define the term burglarious manner, and the requisite intent with which burglary tools are possessed was not declared to be a present intent. We think the complaints advanced are hypercritical. The instructions used were those specifically approved and appended to our opinion in Hart and we adhere to that approval. Among the items found in appellant’s automobile and received in evidence were a radio containing a frequency band used by the Johnson county sheriff’s office and the Prairie Village police department, a listening device attachment attuned to the radio frequency used by the Kansas City, Kansas, police department, a pamphlet on vehicle burglar alarms, two pairs of gloves and a pair of binoculars. Appellant complains certain of these items were not relevant evidence and further that the jury was not instructed, as requested, as to the limited purpose for which they might properly be considered. Obviously, in and of themselves, none of these items could alone accomplish an actual breaking of an enclosure. They were, however, as pointed out in Hart, items of a nature generally useful to one engaged in burglarious ventures and hence relevant on the question of intent. The jury was instructed generally upon the issue of the requisite intent and we do not think it was misled to appellant’s prejudice by any failure to give further instructions as to how this paraphernalia should be considered. Appellant asserts an unlawful search and seizure occurred by reason of the removal of the articles from his automobile. When Officer Smith returned to appellant’s vehicle on the night in question two other police vehicles also arrived upon the scene. Appellant was arrested and searched. Officers Morrow and Smith looked inside the vehicle while appellant was in custody on the scene and saw the gloves, a hatchet, a ball bat, two screwdrivers, pliers, the radio and listening device, a punch, and a pair of tin snips. Officers Morrow and Smith then pulled appellant’s vehicle to the side of the street, locked it, placed a police officer in charge, and took appellant to the Prairie Village station which was nearby. Officer Smith returned immediately to the vehicle and searched the trunk. Inside the trunk he found a pair of bolt cutters, two screwdrivers, and a pair of channel lock pliers. All of the items were then seized and constitute the challenged items admitted at trial over objection. Appellant did not give permission to search inside his car and he contends a search warrant was necessary before the search and seizure could be valid. We think not. Appellant’s arrest was legal and it is not contended otherwise. A reasonable search may be made incident to an arrest as to things within the immediate control of the accused, including a motor vehicle, without a search warrant. To meet the test of reasonableness, a search may be incident to an arrest if it is substantially contemporaneous therewith and is confined to the immediate vicinity of the arrest. The reasonableness of the search depends upon the facts and circumstances of the particular case (State v. Wood, 197 Kan. 241, 416 P. 2d 729). Here seizable items were observed at the time of arrest. The whole process of arrest and search and seizure was substantially one contemporaneous action, and the search and seizure must be said to be reasonable (State v. Brown, 198 Kan. 473, 426 P. 2d 129; State v. Omo, 199 Kan. 167, 428 P. 2d 768). Appellant complains one item, the tin snips, was considered by the jury although never actually received in evidence. Confusion in the record existed at the time the exhibit was proffered but upon the hearing of motion for new trial and trial judge stated his notes revealed the reception into evidence of the item. Thus it appears no irregularity occurred — certainly nothing of substantial import. Appellant contends the trial court erred in receiving evidence of four previous convictions of the offenses of burglary and larceny, three being in 1954 and one in 1960. Although not specifically challenged in the prior appeal, we said respecting them: “Evidence of prior convictions of larceny and burglary is admissible, under proper instructions, and relevant and material to the issues whether burglary tools were possessed with the intent that they be used for burglarious purposes.” (p. 657.) Appellant argues convictions thirteen and seven years old are too remote in point of time to be relevant. There can be no hard and fast rule laid down by which it can be determined when evidence of prior crimes becomes irrelevant because of intervening time. The matter is one which must be left largely to the discretion of the trial court (State v. Yates, 202 Kan. 406, 449 P. 2d 575). In State v. Fannan, 167 Kan. 723, 207 P. 2d 1176, a prosecution for burglary and larceny, convictions seventeen and ten years old were held properly admitted in evidence in a jury trial. We hold here the trial court did not abuse sound discretion in admitting the evidence. Complaint is made of the court’s instruction to the jury respecting the limited puipose for which the evidence of previous convictions might be considered. We have examined the instruction and think it fairly covered the issue upon which the evidence was relevant (State v. Hart, supra). Appellant challenges the sufficiency of the evidence to sustain his conviction. He raised this same issued in his first appeal and it was determined adversely tO' him. We need not repeat the evidence. With the exceptions already noted, the same evidence was received at the second trial on behalf of the prosecution as at the first. We again hold that evidence sufficient to sustain a conviction. Appellant also1 reasserts his contention the statute under which he was convicted, K. S. A. 21-2437, is constitutionally invalid because of vagueness and uncertainty. Here again that issue was determined adversely to appellant (State v. Caldrone, supra, Syl. ¶ 3) and further discussion is not warranted. Appellant makes various contentions of error arising out of the admission of rebuttal testimony by the prosecution that an agent of the Federal Rureau of Investigation had had appellant under daily surveillance for a period of months immediately preceding the alleged offense during which time appellant had no legitimate employment. The evidence was properly admitted in rebuttal of appellant’s testimony he had been working as a carpenter during the time in question. We have examined the argument made by the prosecution on this aspect of the evidence and we believe the trial court kept it within the proper bounds. Appellant attacks the constitutionality of our habitual criminal act under which he was sentenced but concedes our cases are legion against his position. Various other alleged errors complained of, including denial of motion for new trial, have been examined but are without merit and require no discussion. The judgment is affirmed. APPROVED BY THE COURT.	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The opinion of the court was delivered by O’Connob, J.: This action was initiated by the plaintiffs, Kenneth George and members of his family, against the defendants, W-G Fertilizer, Inc. and W. Rex Woods, to determine ownership of 222 shares of stock in the corporation. After trial to a jury, which returned special verdicts generally in favor of plaintiffs, the trial court entered judgment in effect reinstating plaintiffs as owners of the corporation stock upon repayment by them of $5,200 received from Woods as down payment for the stock. Both sides have appealed. For a proper understanding of the issues raised, the facts surrounding this controversy must be recited in some detail. George owned and operated grain elevators near Thayer, Kansas. He and other members of his family, whom he represented, owned 222 shares of stock in W-G Fertilizer, Inc., also located at Thayer. For several years Woods had been George’s accountant on tax and estate matters. In April 1962, Woods purchased the elevators from George, and during the ensuing months they talked about Woods’ buying the fertilizer stock owned by the Georges. In September 1962, George and Woods entered into an oral agreement whereby Woods would buy the stock for $22,200 ($100 per share) if George could obtain permission of the other stockholders, as required by the bylaws of the corporation. There was a sharp dispute in the testimony concerning terms of the sale. According to George, Woods was to pay for the stock before the shares were transferred. Woods, on the other hand, testified that since he had no money with which to buy the stock, the shares were to be transferred to him and he in turn would use them for collateral to secure a loan with which he would pay George approximately $5,000 down and the balance when he could. Woods was also interested in purchasing fifty shares of fertilizer stock owned by Truman Elrod. At a special meeting of the stockholders held September 12, 1962, George and Elrod obtained permission to sell their stock to Woods. A meeting of the board of directors was held October 13, and on or about that date new stock certificates (No. 12 for the Elrod stock, and Nos. 13 and 14 for the George stock) were issued to Woods. The new certificates were signed by the president and secretary of W-G Fertilizer, Inc. The old stock certificates (Nos. 9, 10 and 11), evidencing the 222 shares owned by the Georges, have never been found. George testified he did not execute nor deliver the certificates, although he did give Woods power of attorney to vote the shares. Woods, however, said that George did endorse and deliver the certificates. On October 16, 1962, Woods pledged the new certificates (Nos. 12, 13 and 14), evidencing a total of 272 shares, to First State Bank of Salina and obtained a loan of $10,000. On the same day he issued a check for $5,200 payable to George, with the notation, “Down-payment on Stock W-G Fertilizer,” which check was received by George the following week. Woods wrote George a letter on May 27, 1965, which George claims was the first indication he had that the stock had actually been transferred to Woods. Upon looking into the matter, George discovered the stock had been reissued to Woods in October 1962, and had been pledged to the bank in Salina. The plaintiffs George filed this action November 16, 1966, claiming they had never endorsed, transferred or delivered stock certificates Nos. 9, 10 and 11, and that the new certificates (Nos. 13 and 14) “were unlawfully and illegally issued and are invalid and of no force and effect.” In the prayer of their petition plaintiffs asked that certificates Nos. 13 and 14 be cancelled, that certificates Nos. 9, 10 and 11 be reinstated, and that plaintiffs be recognized as the owners of the 222 shares. Defendants, in their answer, alleged the shares of stock were sold to Woods on September 12, 1962, and that certificates Nos. 13 and 14 were duly issued to Woods pursuant to the sale; that plaintiffs’ claim was barred by the statute of limitations; and further, that plaintiffs, by reason of their conduct, were estopped to ■deny Woods’ title to the stock. The record fails to show that a pretrial conference was held ■further defining the issues. The case, in this posture, was tried and .submitted to the jury under instructions to which no objection was ■registered by the parties. The jury returned the following special verdicts: “1. Did plaintiff J. Kenneth George transfer as defined in the Instructions :222 shares of stock to defendant W. Rex Woods in September or October of 1962? No. “2. If your answer to No. 1 is no, when did the fact that defendants no longer recognized and accepted plaintiffs as stockholders first become reasonably ascertainable to Mr. George? “Upon receipt of letter from W. Rex Woods dated May 27, 1965.” Thereupon, plaintiffs moved for judgment in accordance with the special verdicts. In ruling on the motion, the trial judge issued a memorandum opinion in which he noted that although this was a suit in equity to determine the rights of the parties between themselves, it was not an action for rescission of a contract — the issue submitted to die jury being very narrow — whether plaintiffs had transferred the stock to Woods. Further the judge stated that because equitable principles applied, the court was required to render a decree which worked equity, and plaintiffs should be required to do equity; hence, plaintiffs were entitled to be reinstated as stockholders in the defendant corporation but could not retain the money paid them by Woods. Plaintiffs filed a motion to alter or amend the judgment proposed in the court’s memorandum on two grounds: (1) that judgment should be entered as requested in their original motion, or (2) in the alternative, if plaintiffs were to be directed to pay Woods any sum of money under the judgment, they should be granted the right to introduce evidence with reference to any equitable setoffs to which they might be entitled against Woods. The motion was overruled. The formal journal entry of judgment filed September 4, 1968, recited: “. . . upon the payment to the Clerk of the District Court of Neosho County, Kansas, of the sum of $5200.00 by the plaintiffs, plaintiffs will be decreed to be the owners of 222 shares of stock of W-G Fertilizer, Inc., Thayer, Kansas, and that stock certificates No. 13 and 14 issued by said corporation assigning ownership of 222 shares to the defendant, W. Rex Woods, be can-celled, set aside and held for naught.” The denial of their motion to alter or amend the proposed judgment constitutes the principal point urged by plaintiffs in their appeal. They first contend that the court had no jurisdiction to order them to return the $5,200 down payment to Woods, under the general proposition that courts have jurisdiction to decide only such issues as are raised by the pleadings, and a judgment which goes beyond such issues is void. (Green v. Kensinger, 193 Kan. 33, 392 P. 2d 122; Shriver v. Board of County Commissioners, 189 Kan. 548, 370 P. 2d 124.) We believe the argument overlooks the fact that the power of equity was invoked in the first place by the plaintiffs in the instigation of their lawsuit. Not only did they seek to determine ownership of the stock, they also requested restoration of property rights alleged to have been unlawfully taken from them. The nature of the relief sought was that which only equity could provide. At oral argument plaintiffs’ counsel stated they were merely asking to be placed in the same position as they were before the transfer, but were not attempting to rescind the oral contract. This, we believe, begs the question. It is fundamental that anyone going into equity and asking its aid submits himself to the imposition of such terms as well-established equitable principles require and dictate in the exercise of the court’s sound discretion. Ordinarily, one who invokes the aid of equity must be prepared to accept its liabilities as well as its benefits. (W. K. H. Trust Co. v. Building Co., 160 Kan. 605, 164 P. 2d 143; 27 Am. Jur. 2d, Equity § 134.) There is no question that the Georges had received and accepted the $5,200 down payment from Woods; and to permit them to be reinstated as owners, without at the same time considering the money paid them for the stock, could well lead to an unjust and inequitable result. Furthermore, under all the circumstances of this case, the failure of plaintiffs, in their pleadings or otherwise, to offer to do equity does not prevent the granting of the relief sought where the decree can be conditioned upon recognition of any equities that might exist in favor of the adverse party. (See, Home Owners’ Loan Corp. v. Oakson, 161 Kan. 755, 173 P. 2d 257; 12 C. J. S., Cancellation of Instruments § 44b.) The trial court properly took into consideration the money received by plaintiffs from the defendant Woods, but, as we will later point out in the opinion, should have favorably considered the alternative ground of plaintiffs’ motion to alter or amend the proposed judgment by permitting them to introduce evidence of any equitable setoffs. As previously indicated, the trial court, in rendering judgment, ordered that the new stock certificates (Nos. 13 and 14) be can-celled, set aside and held for naught. This portion of the decree cannot be upheld, inasmuch as the evidence disclosed these certificates were no longer in the hands of Woods but had been pledged as security to the First State Rank of Salina. The bank had not been made a party to this lawsuit, and the district court, in its memorandum and judgment herein, made no attempt to determine the bank’s rights, if any, under its pledge agreement with Woods. The bank, however, had not been idly standing by, in respect to asserting its rights to the certificates in question. On December 15, 1966 (about one month after plaintiffs instituted this case), the bank commenced an action in the district court of Saline county against Woods, the Georges and the fertilizer company. In the Saline county action the bank claimed a first and prior lien on the stock in question; that their security interest was being jeopardized by the present action in Neosho county; and further, that in the event that the sale of stock by the Georges to Woods was found to be invalid by the Neosho county district court, the bank would be injured as a result of misrepresentation and fraud on the part of Kenneth George in holding himself out to be the owner of the stock and authorized to sell and convey the same to Woods. So far as the record is concerned, the pendency of the Saline county action was not brought to the attention of the Neosho county district court until defendants filed their motion for new trial, with a copy of the bank’s petition attached. On this basis the defendants urged, without avail, that the trial court was without jurisdiction to try the case and enter judgment because the court in Saline county was the first to acquire jurisdiction over the complete subject matter of the controversy with all of the necessary and indispensable parties. The jurisdictional question thus raised is the principal point advanced by defendants in their cross-appeal. While courts generally frown upon piecemeal litigation when all questions or controversies between interested parties can be determined in one action, we are of the opinion the district court of Neosho county had jurisdiction to determine the rights and liabilities as between the Georges and Woods growing out of the abortive transfer of the shares of stock. The court, however, had no jurisdiction to adjudicate the bank’s security interest in the certificates, which were in its possession, under its agreement with Woods. The provisions of the Uniform Stock Transfer Act in effect at the time of these transactions (K. S. A. 17-4807 [Repealed, L. 1965, ch. 564, §416], now K. S. A. 84-8-301) provided that a transfer of a stock certificate could not be rescinded when the certificate had been transferred to a purchaser for value in good faith without notice of any facts making the transfer wrongful. Whether the bank was a bona fide purchaser was an issue to be determined in the Saline county case. It was not made an issue in the present case, nor had the bank been made a party to this action. Thus, the district court of Neosho county was without jurisdiction to decree “that stock certificates No. 13 and 14 issued by said corporation, assigning ownership of 222 shares to the defendant, W. Rex Woods, be can-celled, set aside, and held for naught.” Our conclusion in this respect does not render the Neosho county action an exercise in futility. The issue of ownership in the stock certificates as between the Georges and Woods has now been determined, leaving the bank, in the Saline county case, in a position to litigate its security interest. This record contains nothing about the Saline county action other than the bank’s petition. We assume that no attempt is being made in that case to litigate any equitable setoffs to which the Georges may be entitled against Woods for wrongful transfer of the stock, which is the very point that plaintiffs urged as an alternative ground in their motion to alter and amend the proposed judgment in the present case. Inasmuch as the evidence at trial disclosed that Woods was in serious financial straits, which is further substantiated by the pendency of the Saline county action, we believe that the trial court here should have granted plaintiffs’ motion and permitted them to introduce evidence concerning any equitable setoffs. A court of equity is not obliged to render the specific relief prayed for but may make such a decree as justice demands, under all the facts and circumstances as revealed by the evidence. The respective rights of the parties should be determined by an appropriate decree so as to avoid future litigation insofar as possible. (Nelson v. Robinson, 184 Kan. 340, 336 P. 2d 415, and authorities therein cited.) Defendants, in their cross-appeal, complain that the court erred in determining that plaintiffs’ action was not barred by the two-year statute of limitations (K. S. A. [now 1969 Supp.] 60-513 [2]). We do not agree. The evidence was in dispute as to when the “fact of injury” first became reasonably ascertainable to plaintiffs and, thus, was an issue for determination by the trier of fact. (See cases collected in 3 Hatcher’s Kansas Digest, Limitation of Actions § 193; 6A West’s Kansas Digest, Limitation of Actions § 199.) This issue was properly submitted to the jury under instructions to which defendants made no objection. The jury’s finding, ultimately adopted by the trial court, was to the effect that plaintiffs’ cause of action did not accrue until May 27, 1965, which was less than two years before the action was brought. There being evidence to support the finding, it will not be disturbed on appellate review. Other points raised in defendants’ cross-appeal have been examined and found to be without merit. From what has been said, the judgment of the district court is affirmed in part and reversed in part. Plaintiffs are decreed to be the owners of the 222 shares of stock, subject to repayment by them of $5,200 to Woods, less any equitable setoffs they are able to' establish at a further hearing on the matter. The case is remanded with directions to proceed in accordance with the views herein expressed.	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The opinion of the court was delivered by Harman, C.: This suit challenges constitutionality of our automobile guest statute (K. S. A. 8-122b). The action was submitted to the trial court upon stipulated facts. We need state only that plaintiff, a guest passenger in an automobile driven by defendant, allegedly was injured in a collision with a utility pole as a result of defendant’s ordinary negligence. Plaintiff stipulated there was no evidence of any acts by defendant which would constitute gross and wanton negligence under the provisions of K. S. A. 8-122b. The trial court denied plaintiff’s assertion of unconstitutionality of that statute and pursuant to its provisions, rendered judgment for defendant. Plaintiff has appealed. Appellant’s principal contention is the act is invalid because its title contravenes article 2, section 16 of our state constitution which, so far as material, provides: “No bill shall contain more than one subject, which shall be clearly expressed in its tide. . . .” K. S. A. 8-122b is titled: “An Act relating to the right of a guest of the owner or operator of a motor vehicle in case of accident.” (Laws 1931, Chap. 81.) The statute provides: “That no person who is transported by the owner or operator of a motor vehicle, as his guest, without payment for such transportation, shall have a cause of action for damages against such owner or operator for injury, death or damage, unless such injury, death or damage shall have resulted from the gross and wanton negligence of the operator of such motor vehicle.” Appellant contends the title does not clearly express the subject of the act as constitutionally required. It is elemental the constitution is to be liberally construed to give to the lawmaking power all freedom not positively prohibited by the constitution, and an act under consideration is to be given a liberal construction, with all doubts resolved in favor of its constitutionality, for the purpose of carrying into effect the will of the legislature (In re Schley, 71 Kan. 266, 80 Pac. 631). Guidelines and principles to be followed in applying this particular constitutional provision have been frequently stated and are summarized in Water District No. 1 v. Robb, 182 Kan. 2, 318 P. 2d 387, as follows: “Article 2, Section 16 of the Kansas Constitution is an imperative mandate to the legislature commanding it that no bill shall contain more than one subject which shall be clearly expressed in the title, but it is not necessary that the title be a synopsis or abstract of the entire act in all its details. It is sufficient if the title indicates clearly in general terms the scope of the act where the detailed provisions embraced therein are all germane to the subject expressed in the title. A title will be liberally construed when attacked as violating the foregoing constitutional provision.” (Syl. f 2.) It was also stated in that opinion: “The purpose of a title is to direct the mind to the contents of a bill or of an act, so that members of the legislature and the public may be fairly informed and not deceived or misled as to what it embraces.” (p. 9.) And in Colorado Interstate Gas Co. v. State Corporation Comm., 192 Kan. 29, 386 P. 2d 288, we find this comment: “The more general the language of the title, the broader the subject matter of the act may be.” (p. 36.) In support of her contention of inadequacy appellant cites several of our cases holding in effect that the purpose of our guest statute is to limit the liability of a host owner or driver of an automobile. From this she concludes the person primarily affected by the guest statute is the owner or operator of an automobile because his liability to a guest is greatly diminished, yet, she argues, the title to the act is not sufficiently broad to include legislation concerning the right of a guest. Appellant cites guest statutes from other states whose titles refer to the liability of the owner or operator of a motor vehicle for injury to a guest. She apparently contends the act should therefore be titled as relating to “limitation (or regulation) of liability of an owner or operator of a motor vehicle” rather than “right of a guest”. Appellee counters with the suggestion that if the act were so titled the converse argument could as well be made that the guest was thereby fatally neglected. All but one of the cited statutes from other states mention guest (or passenger) as well in the title and we are unable to find in them, or in the cited cases interpreting them, support for appellant’s position. The act in question here affects two classes of persons: (1) Guests and (2) owners or operators of vehicles — dealing with each class not separately but with their natural connection to each other. Its enactment diminishes both the rights of tire former and the liabilities of the latter, illustrating that, generally, rights and liabilities are correlative. In titling such an act it would appear to be of little or no moment which class of persons is mentioned first or upon which focus is first placed. Both classes are mentioned in the title so it can scarcely be said the title is restrictive. Finally, analyzing the provisions of the act grammatically, we find the subject initially stated is: “. . . no person . . . transported by the owner or operator of a motor vehicle, as his guest. . . We must conclude the subject of our guest statute is clearly expressed in its title as constitutionally required. Appellant also contends the guest statute contravenes the due process clauses of both our state and federal constitutions- (§ 18, Bill of Rights, Kan. Const.; 5th and 14th Amend., U. S. Const.) Acknowledging that this court has held adversely to her position (Bailey v. Resner, 168 Kan. 439, 214 P. 2d 323; Wright v. Pixel, 168 Kan. 493, 214 P. 2d 328), she reasserts invalidity and further argues conditions have sufficiently changed since the time of those decisions to warrant a holding that such an exercise of the police power is no longer constitutionally valid. She argues, among other things, the enactment of other legislation has now rendered the guest statute unnecessary in accomplishing its intended objective of preventing collusive recovery from an insurance carrier, and that its retention as a matter of policy is destructive of a higher policy that for every wrong there should be a remedy. She contends a guest injured by the ordinary negligence of the host driver or owner should not be left remediless when others so injured may recover. She points out other areas of immunity from tort liability which have been judicially removed, but these were immunities judicially created rather than by act of the legislature. We have reexamined Bailey and Wright and see no reason to depart from their holding that the guest statute is a valid exercise of the police power of the state and does not violate the constitutional due process mandates. Having reached this conclusion, we may not strike down legislation under the guise of weighing competing social values. Courts cannot repeal a statute unless it is clearly in excess of legislative power or subject to some constitutional inhibition (16 C. J. S., Constitutional Law, §151 [1] c.). Constitutional questions aside, the legislature is the judge of that which the public good requires. When it speaks on a particular subject over which it has constitutional power to legislate, public policy in such a case is what the statute enacts (State, ex rel., v. Anderson, 195 Kan. 649, 408 P. 2d 864). The judgment is affirmed. APPROVED BY THE COURT.	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The opinion of the court was delivered by Fatzer, J.: This is an appeal from a conviction for the violation of K. S. A. 65-2502 — possession of cannabis, commonly known as marihuana. The sole question presented is whether contraband introduced into evidence at the appellant’s trial was the product of an illegal search and seizure contrary to the provisions of the Fourth Amendment to the Constitution of the United States and Section 15 of the Kansas Bill of Rights. We hold it was not, for the reason only unreasonable searches and seizures are within the constitutional interdict. The appellant and his companion were stopped on an interstate highway by two highway patrol troopers for a speeding violation— they were traveling 87 miles per hour in a 70 mile zone late at night. The arresting officers also noticed the car was weaving, which observation led to a search of the appellant’s automobile with his consent for an “open bottle.” (K. S. A. 41-804.) In the course of the search, an empty revolver holster was found in the glove compartment. The officers told the appellant and his companion to place their hands on the hood of the vehicle, and one officer began the search for the possession of a concealed weapon. In the course of the search, a lump was found on the back of the appellant’s leg and the trooper lifted the pant leg and removed a hard round object out of the top of appellant’s sock, which was a rolled-up manila envelope. He handed the object to the other trooper and continued the search of appellant’s companion where he found an empty holster. No weapons were found either on appellant or his companion, but a search of the trunk of the automobile produced a rifle and a shotgun. The manila envelope contained cannabis which was received into evidence at the trial over appellant’s objection. The appellant appeals from this ruling and the order overruling his motion for a new trial. The provisions of the Fourth Amendment prohibits only unreasonable searches and seizures. (Boyd v. United States, 116 U. S. 616, 29 L. Ed. 746, 6 S. Ct. 524.) The decision in effect requires this court to determine the reasonableness of a particular search under all the facts and circumstances of the case. (Wong Sun v. United States, 371 U. S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407.) It is therefore necessary to apply an objective standard to determine whether the situation would warrant a reasonable man in taking the action under judicial investigation. (Carroll v. United States, 267 U. S. 132, 69 L. Ed. 543, 45 S. Ct. 280, 39 A. L. R. 790.) Under the doctrine of Terry v. Ohio, 392 U. S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, when an officer’s action is justified at its inception and is reasonably related in scope to the circumstances which justified and rendered its initiation permissible, the search is not one of such intolerable intensity and scope as to violate the Fourth Amendment. The court said: “. . . When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.” (p. 24.) See, also, State v. Bell, 205 Kan. 380, 469 P. 2d 448. In Sibron v. New York, 392 U. S. 40, 20 L. Ed. 2d 917, 88 S. Ct. 1889, a police officer observed the defendant over an eight-hour period during which time the defendant had several conversations with persons known to be narcotics addicts, but the officer observed no passage of narcotics between the parties. Later, Sibron was confronted by the officer who thrust his hand into Sibron s pocket discovering heroin. It was held the initial search was unreasonable in that the officer was unable to point to any particular facts from which he could reasonably infer Sibron was armed and dangerous, and even assuming there were adequate grounds for such belief, the nature and scope of the search conducted were so clearly unrelated to that justification as to render the heroin inadmissible. It was clear the officer was searching for narcotics without a warrant. The instant case presents a different situation. Here, there was a reasonable self-protective search of appellant to determine whether he had concealed on his person a dangerous weapon, which the officer had probable cause to believe he had. During the search and while patting the legs of appellant, a hard round object was found in appellant’s sock which was later discovered to be a rolled-up manila envelope containing contraband. The officer’s search was restricted to what was appropriate to the discovery of the particular item sought — a gun. The officer did not place his hands in the pockets or under the outer surface of appellant’s clothing until he felt something which may have been a weapon, and then he merely removed it. He did not conduct a general exploratory or “full” search for whatever evidence of criminal activity he might find. (Terry v. Ohio, supra.) We conclude the search was reasonable and the finding of the contraband was admissible. Items seized by an officer lawfully searching for purposes of self protection or for fruits of another crime, may be retained and used in the appropriate criminal prosecution to which its items relate. (Peters v. New York, 392 U. S. 40, 20 L. Ed. 2d 917, 88 S. Ct. 1889; Abel v. United States, 362 U. S. 217, 4 L. Ed. 2d 668, 80 S. Ct. 683.) The judgment is affirmed.	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The opinion of the court was delivered by Fontron, J.: Only two parties are concerned in this appeal, the City of Garnett, Kansas, and Cities Service Gas Company, to whom we shall hereafter refer as City, or plaintiff and Cities Service, or defendant. The trial court entered summary judgment in favor of Cities Service and the City has appealed. The sequence of events forming the background of this case is as follows: Prior to 1947 the City, which owns the natural gas distribution plant supplying gas to its residents, obtained its gas supply from nearby wells, with Cities Service being on a standby basis. During that period the City odorized the gas before distributing it to its customers. On June of that year, the City and Cities Service entered into an agreement in which Cities Service agreed to supply the City with sufficient natural gas of merchantable quality for all its needs. At this point the City ceased odorizing the gas in its distribution system. Apparently all went well until the late fall of 1964, when an explosion occurred at the home of the Maddy family, the cause of which was never determined. On the evening of January 5, 1965, a floor furnace flared up in the house owned by the McAfees, situated across the street from the Maddy residence. The McAfee house was rented at the time to the Wallace family. Immediately after the flare-up, Mr. Wallace turned off the gas and the following morning a check was made by the superintendent of the City gas plant and a plumber, who was called in to help. These two men detected no problems and the gas was turned on again later in the day. On the same evening, January 6, 1965, an explosion occurred killing one of the Wallace sons and severely injuring Mr. Wallace and their other boy. The Wallaces, who subsequently moved from Garnett, brought an action in federal court against the City to recover damages for the death of the child and for the personal injuries sustained by Mr. Wallace and the surviving son. Mr. and Mrs. McAfee also filed suit against the City to recover damages resulting to their house, but their action was filed in the District Court of Anderson County, Kansas. In both actions, the one by the Wallaces in federal court and the one by the McAfees in state court, the City filed third-party petitions against Cities Service, contending that Cities Service had breached its obligation to furnish the City with natural gas of merchantable quality and praying that in the event judgments be rendered against the City that then it recover judgment against Cities Service in like sum or sums. In federal court, the Wallace action against the City was separated for trial from the third-party suit by the City against Cities Service, and we are advised that judgments were entered therein against the City in amounts totaling $148,000. The third party claim of the City against Cities Service is still pending in federal court, apparently awaiting the outcome of this appeal. The action brought by the McAfees against the City in the state court was separately tried and resulted in a judgment against the city for $9,000. No appeal has been taken from that judgment. Thereafter, Cities Service filed a motion for summary judgment in response to the third-party claim of the City. In ruling on this motion the trial court had before it not only the pleadings in this case, but also, by stipulation, the transcript of the federal case, including the discovery proceedings, so far as they were relevant to this case. Summary judgment was entered by the court in favor of Cities Service on the ground that there remained no genuine issue of material fact between the parties. In entering judgment the trial court filed a comprehensive memorandum opinion to which we shall refer as needed. As we have said, the City has appealed. The main thrust of the City’s argument may be stated this way: That Cities Service, by failing to odorize the gas before delivery to the City distribution plant, thereby breached its contractual duty to deliver gas of merchantable quality. The argument in this regard is three pronged: First, that natural gas with no odor is dangerous for distribution to consumers; second, that gas which is dangerous for consumers to use is not fit for its intended purpose; and third, that gas not fit for its intended purpose is not of merchantable quality. Cities Service makes no contention that the gas supplied to the City had been odorized by means of an additive, or malodorant as it is sometimes called, but maintains that odorization has nothing to do with its merchantable quality, within the meaning of its contract. Hence, Cities Service argues that its failure to odorize the gas before delivery to the City does not constitute a breach of its warranty to supply gas of merchantable quality. The question then, in our opinion, narrows down to this: Was the gas delivered to the City, without the addition of a malodorant, of merchantable quality within the intendment of the contract? Or, to phrase the query in a slightly different context, can it be said the delivery of odorized gas was within the contemplation of the parties when they entered into their agreement? Before proceeding to examine certain portions of the evidence deemed pertinent, we refer to the rule that in the construction of contracts, primary focus must be directed toward ascertaining the intention of the parties as gathered from the subject matter of the agreement, the language employed and the surrounding circumstances. (Stevens v. Farmers Elevator Mutual Ins. Co., 197 Kan. 74, 76, 415 P. 2d 236; New Hampshire Ins. Co. v. Fox Midwest Theatres, Inc., 203 Kan. 721, 457 P. 2d 133. So far as relevant to the question before us, the provision of the contract as to merchantability is set forth in these words: “The natural gas supplied hereunder shall be of a merchantable quality and shall have a system wide weighted average total heat content of not less than nine hundred thirty-four (934) British Thermal Units per cubic foot saturated with water vapor under the standard measurement next recited. . . .” According to the experts produced by Cities Service, it appears that the natural gas sold to the City comes from the Oklahoma Plugoton gas field and is relatively free from sulphur, itself a potent source of stench; and that Cities Service produces no gas itself but buys it either at the wellhead or at the tailgate of a processing plant. After coming from the well, the gas is processed to extract some of the liquefiable carbons, which give natural gas its odor, and which otherwise would normally drop out in transmission. Some two-thirds of the heavier hydrocarbons are removed from the gas, in such form as propane, butane, etc., which reduces the odor by such percentage. No malodorizing agent is added to the gas as it is transported through the pipeline, although the gas still retains a perceptible odor. Further statements by defense experts were that due to pressure and to temperature changes in the pipeline, heavier hydrocarbons from the gas stream tended to condense, thus becoming liquid and interfering with the gas flow; that to maintain the pipeline in best operating condition it is necessary to remove the hydrocarbons from the gas; that the Kansas Corporation Commission has no regulations requiring that gas be odorized before delivery to a retail gas distribution plant and that such would be highly impractical; that for effectiveness, natural gas must be odorized at the last possible moment before delivery to the consumer; that much of the odorant would disappear during transmission and storage, making it impossible to maintain a uniform level of odor; and that from time to time the gas may move in either direction, which would result in a double dose. A good deal of the evidence introduced by Cities Service through expert testimony was in the realm of custom and practice in the natural gas industry. For example, Mr. Hofsess, a graduate engineer with long experience and now an executive of the defendant company, testified that it is and has always been the practice in the industry that odorization is the responsibility of the retail distributor; that interstate pipeline companies operating in Kansas have never odorized natural gas supplied to retail distributors for resale to consumers; that the provisions as to quality found in the City’s contract are those contained in their Federal Power Commission Gas Tariff and are incorporated in every contract under which the company sells gas for resale. The witness then pointed out similar provisions with respect to merchantability in the tariffs of other pipeline companies operating in this general area, none of whom odorized their natural gas. Mr. Hofsess further testified that no officer, agent or employee of the City had ever requested Cities Service to odorize the gas supplied to it, and that the city itself began odorizing gas immediately after the McAfee explosion occurred. On the other side of the coin, the City produced the affidavit of another expert, Mr. Fowler, with a degree in chemical engineering and with experience in the petroleum industry. He stated that safety standards required that gas transmitted for consumption be odorized so it is smellable in concentrations greater than one-fifth of the lower explosive limit and “gas not so odorized is not merchantable for the reason that the gas that does not meet this minimum standard should not be introduced into distribution lines”; such gas, if it escapes undetected, could cause great damage; that gas as it comes from the well before processing would approach or exceed the minimum odorization standard; after processing, the gas is substantially odor free and should not be delivered to consumers through distribution or household lines; that gas which had been processed is properly called processed rather than natural gas; Mr. Fowler summarized by stating: “Any gas processed in the manner described by Mr. Hofsess and introduced into the distribution system would be unsafe and, therefore, not merchantable.” We are of the opinion that the test of “gas of merchantable quality” in this case must be determined within the context of its meaning, use and acceptance in the natural gas trade or business. This view accords with the general law in this area as well as with our own decisions. In Francis v. Shawnee Mission Rural High School, 161 Kan. 634, 170 P. 2d 807, the opinion hinged on what was intended by the phrase “for the school year” which was used in the contract of employment under which the plaintiff school teacher was employed. On page 638 this court said: “. . . It may be assumed in the absence of evidence to the contrary, that when members of a trade or business employ trade terms in their contracts with one another they attach to them their trade significance. . . .” <p. 638.) The general rule is expressed in 25 C. J. S., Customs and Usages, $ 21, pp. 145, 146, in this language: “. . . In the absence of an express or implied stipulation to the contrary in the agreement, persons engaged in the same trade or business are deemed or presumed to have contracted with reference to particular customs or usages of the trade, and it is competent to resort to such customs or usages to interpret the contract; and where a person deals in a particular market, he is deemed to deal according to the general customs or usages of that market in the absence of a stipulation to the contrary, and such customs or usages are admissible to explain the contract.” To similar effect we find the rule phrased in this statement set forth in 17 Am. Jur. 2d, Contracts, § 251, p. 643: “Although words in a contract are generally to be given their usual and primary meaning at the time of the execution of the contract, words of art or words connected with a particular or peculiar trade are to be given the signification attached to them by experts in such art or trade, unless it appears that they were used in a different sense. . . .” It is true that the terms “merchantable” and “merchantable quality” are not the exclusive property of those engaged in the natural gas business. The words are, in fact, words of general circulation with widespread import. Generally speaking, we believe it may be said that “merchantable” may be equated with “salable” or “marketable.” In Foote v. Wilson, 104 Kan. 191, 178 Pac. 430, we said that “salable” was the equivalent of “merchantable”, which “in all the dictionaries and to the common understanding means, as applied to commercial transactions, fit for sale in usual course of trade, at usual selling prices.” (p. 193.) In an earlier case, Ely v. Gas Co., 99 Kan. 236, 161 Pac. 649, which involved the sale of natural gas, it was said: “. . . The term [merchantable] . . . usually carries an implciation of quality — that the article to which it is applied conforms to ordinary and reasonable standards — that it is substantially of the average grade or value of similar goods sold in the same market. ‘Where it is provided that the articles sold shall be “merchantable,” the articles must be of a quality such as is generally sold in the market and suitable for the purpose for which they are intended, although not of the best quality/ (35 Cyc. 219.) . . .” (pp. 246, 247.) Usual definitions, or tests of merchantability, hardly fit the circumstances of this case or the situation of these parties, for there is no contention here as to the quality of the gas itself. No claim is advanced that the heat content did not measure up to the warranty of 934 B. T. U., or that the product would fail in other particulars to do the job for which gas is normally employed. This is born out by the fact that for seventeen years the City distributed natural gas for the use of its customers without taint of complaint, so far as the record shows, concerning its quality or effectiveness. In this respect the present case differs radically from Ely v. Gas Co., supra, where the B. T. U. content was far below that of gas from other sources, with little more than half the heat-producing value of gas ordinarily used for the same purposes. In this case, the dispute hinged not on British Thermal Units, or combustibility, but over the addition of a smelly odorant. Hence, as applied to the sale of natural gas by a carrier to a distributor, we view the expression “gas of merchantable quality” as one of art, the import of which must be deduced within the framework of the industry using the term. The evidence of defense experts stands uncontroverted as to the necessity of removing heavier hydrocarbons from the natural gas stream to maintain a pipeline in good operating condition, and that the extraction of heavy hydrocarbons has been a universal practice in the industry for many years; that there has never been a regulation in Kansas requiring natural gas to be odorized before delivery by the carrier to a retail gas distribution system, and that such a requirement would be highly impractical; that odorization in Kansas has always been the responsibility of the distributor; and that odorization to be effective should be performed at the last possible point before it reaches the consumer. We believe this evidence justifies the conclusion that the term “natural gas ... of a merchantable quality” as used in the Cities Service contract, and as contemplated by these parties, both of whom must be said to be in the gas industry, did not refer to malodorized gas as it came from the carrier’s pipeline. The plaintiff, however, maintains that Mr. Fowler, its expert, expressed a contrary opinion, thus presenting a factual question to be determind. Frankly, we cannot view the Fowler deposition in this light. We observe that nowhere in his affidavit does he squarely meet the issue of “merchantable quality” so far as this term is used in the industry with respect to a pipeline carrier, or as to what is customary within the trade relating to the odorization of gas as between carrier and distributor. Mr. Fowler was careful in saying that gas not odorized is not merchantable for the reason that it should not be introduced into distribution lines, and that gas processed in the manner described by Mr. Hofsess and introduced into the distribution system would be unsafe and therefore not merchantable. He refrained from saying, however, what merchantability means as to gas in the pipeline, and made no attempt to dispute those portions of the Hofsess deposition which pointed up the impracticability of pipelining odorized gas to distribution plants. We presume that Mr. Fowler, as an expert in the field, would be aware of the practical problems involved in transporting odorized gas by pipeline over many miles, to many distribution centers and under variable conditions, as well as of the customs and usages of the industry itself, and that his opinions were phrased within that frame of reference. This view, we believe, finds support from the manner in which the affiant linked the concept of merchantability with gas in the distribution lines. Appraising Mr. Fowler’s affidavit in this context, we find no essential conflict with the views expressed by the other experts. In this connection we take note of § 703 of the Rules and Regulations of the Kansas Corporation Commission Relating to Standards of Quality, Pressure, Accuracy of Measurement, Safety and Service of Natural Gas in the State of Kansas, Docket 34,856-U, effective January 16, 1961, as well as the American Standard Code for Pressure Piping, the so-called “industry bible” so forcefully flourished by defense counsel during his oral presentation. The provisions of both read: “Any gas distributed to customers under the General Gas Service classification through gas mains or gas services or used for domestic purposes in compressor plants, which does not naturally possess a distinctive odor to the extent that its presence in the atmosphere is readily detectable at all gas concentrations of one-fifth of the lower explosive limit and above, shall have an odorant added to it to make it so detectable. . . .” (Emphasis supplied.) In addition, the Kansas Regulations, of which we take judicial notice pursuant to K. S. A. 60-409 and 60-412, contain the following: § 703 (continued.) “. . . Odorization is not necessary, however, for such gas as is delivered for further processing or use where the odorant would serve no useful purpose as a warning agent. § 205. “A Pipeline or Transmission Line is a pipeline installed for the purpose of transmitting gas from a source or sources of supply to one or more distribution centers or to one or more large volume customers or a pipeline installed to interconnect sources of supply. In typical cases pipelines differ from gas mains in that they operate at higher pressures, they are longer, and the distance between connections is greater. § 206. “A Gas Main or Distribution Main is a pipeline installed in a community to convey gas to individual services or other mains.” The foregoing excerpts taken from the Corporation Commission s rules and regulations and from the “industry bible” strengthen us in our belief that views expressed by Mr. Fowler relate to gas in the distribution lines serving the ultimate consumer rather than to gas flowing from the mouth of a pipeline. We are aware of the City’s argument that should we reject its contention that the gas supplied by Cities Service was unmerchantable as a matter of law, there would still remain a question of fact to be determined. We would agree, that where a factual dispute exists, it is for the jury or other trier of the facts to resolve the conflict. This rule is too well imbedded in our law to require additional citation in this opinion. However the trial court found that no issue of material fact remained as to this issue, and in this we believe the court was correct. In such a case the question of interpretation becomes one of law for the court to determine. (Morgan v. Wheeler, 150 Kan. 667, 95 P. 2d 320.) Consideration has been given to authorities from other jurisdictions cited by plaintiff as supporting its position that Cities Service was under a contractual duty to supply it with malodorized gas. We deem none of the authorities in point. Each case involved liquid petroleum gas, not natural gas. Of greater importance, however, in each case the action was initiated by the victim of an explosion, and recovery of damages was sought on the ground of negligence. Such is not the case here. The City’s third-party action against Cities Service is not based on negligence, but on indemnity, for we adhere to the rule that the right of contribution does not exist between joint tort-feasors. (Alseike v. Miller, 196 Kan. 547, 412 P. 2d 1007; Denneler v. Aubel Ditching Service, Inc., 203 Kan. 117, 453 P. 2d 88.) It is on the basis of indemnity for alleged breach of warranty that we must consider this action. Hence, the authorities cited are not controlling. The City directs attention to § 22-8-2 (a), Rules and Regulations Relating to The Liquefied Petroleum Gas Industry oí the State of Kansas, promulgated by the State Fire Marshal, which provides: “All liquefied petroleum gases shall be effectively odorized by an approved agent of such character as to indicate positively, by distinct odor, the presence of gas down to concentration in air of not over one-fifth the lower limit of flammability. Odorization, however, is not required if harmful in the use or further processing of the liquefied petroleum gas, or if odorization will serve no useful purpose as a warning agent in such use or further processing. . . .” This safety regulation applies by its terms to liquefied petroleum gases without distinction, but it obviously bears no relation to the transmission or sale of natural gas by a pipeline carrier. As we have said before, evidence presented in this case was to the effect that Kansas has no similar regulation respecting the odorization of natural gas in transit via pipeline. Other points presenting questions of interest have been briefed and argued by able counsel on both sides. However, in view of the conclusion we have reached, it is needless to discuss them or to prolong this opinion. The judgment of the trial court is affirmed. Fromme, J., not participating.	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The opinion of the court was delivered by Schroeder, J.: This is an action by the Cities of Arkansas City and Winfield, Kansas, for recovery of taxes paid under protest on a part of the municipal airport and for injunctive relief from further taxation imposed under K. S. A. 1965 Supp. 79-201. The question presented on appeal is whether portions of a municipal airport, consisting of irregular tracts planted to wheat under an oral lease, are subject to ad valorem taxation by the county. The facts have been stipulated and are not in controversy. In 1941 and 1942 under the old condemnation statute, the Cities of Winfield and Arkansas City (plaintiffs-appellees) jointly condemned for airport purposes approximately 1,386 acres of land which they subsequently leased to the United States Government for airport purposes. This site was to become known and referred to as Strother Field. The airport facility was later released by the United States Government, and the appellees herein acquired fee title by warranty and quit-claim deeds to the reversionary interest on a portion of the tract. Regardless of the interest owned, fee or otherwise, the appellees contend the entire premises are currently, and were at all times material hereto, being used for airport purposes. The cities initially in their administrative capacities regarded the whole of the particular acreage condemned necessary for the operation of an airport. Neither of the appellees has, under K. S. A. 3-144a, b, c and d, declared any portion of the tract originally condemned unnecessary for its original purpose or unnecessary to support a full and complete airport. In the year 1967 the county clerk, as county assessor for Cowley County, Kansas, placed that portion of the airport which the appellees had orally leased for wheat farming upon the tax rolls for 1967, contending the farming operations on the land took it from the exemption provisions of K. S. A. 1965 Supp. 79-201. The portion of the airport placed upon the tax rolls consisted of seven irregularly shaped tracts between the runways, in the comers and at various other vacant places which were not occupied by airport facilities. These various irregularly shaped tracts individually ranged in size from 10.2 acres to 216.7 acres. The total acreage placed upon the tax rolls consisted of 634.3 acres, out of a total of 1,386 acres in the airport. The taxes, as assessed, were paid by the appellees under protest, and application was made to the board of tax appeals, which on the 16th day of November, 1967, denied relief, finding that the property involved in the application was not being used exclusively for municipal purposes so as to bring it within the exemption provisions of Article 11, Section 1 of the Kansas Constitution and K. S. A. 79-201, as amended. On appeal to the district court by the cities the matter was submitted upon an agreed statement of facts, the oral statements of counsel, and exhibits entered into evidence by agreement. Subsequently, on the 10th day of December, 1968, the court entered its judgment for the appellees, announcing that in addition to the stipulated facts and oral statements of counsel, the trial judge had viewed the premises from the air and had studied an aerial map of the airport facility. (No objection was made by the appellants to the court’s aerial view of the premises or the aerial map used by the court in arriving at its decision.) The trial court found the land in question which the appellants sought to tax had not been declared by the appellee cities to be unnecessary for airport purposes pursuant to K. S. A. 3-144a, b, c and d, and that any other partial or part-time use made of the premises was only incidental to its use as a public municipal airport. It found the lands in question should be removed from the tax rolls of Cowley County, Kansas, for the year 1967 and subsequent years, and all monies paid by the cities to the county treasurer for said years should be refunded to them. A decree was entered accordingly. In the agreed statement of facts it is conceded the municipalities in question have not declared the land in question unnecessary for municipal airport purposes pursuant to K. S. A. 3-144a, b, c and d. K. S. A. 1965 Supp. 79-201 (L. 1965, ch. 509, § 1, Sixth) provides in part: “That the property described in this section, to the extent herein limited, shall be exempt from taxation: “Sixth. All property belonging to and used exclusively by the state or any municipality or political subdivision of the state, except lands bid off for counties or cities at tax sales: Provided, That if any of such property is leased, loaned or otherwise made available to any person, firm or corporation for use in any trade, business or commercial enterprise, such property so leased, loaned, or otherwise made available shall not he exempt from taxation, for and during the term or terms thereof, except that this proviso shall not apply to municipal airports, swimming pools, auditoriums, [Law prior to 1965 — “to municipal airports and swimming pools; or to auditoriums”] fair buildings and grounds, state buildings, school buildings, or publicly cwned park and recreational facilities which are owned by the state, municipality or any political subdivision of the state which are temporarily, occasionally or partially leased for the general use or entertainment of the public, or to cafeterias and concessions in or on property owned by the state, municipality, or political subdivision of the state which are incidental to the public use of the property: . . .” The appellants rely upon the change made in the foregoing statute by the legislature in 1965. They argue that prior to 1965 the semicolon, appearing after the words “swimming pools,” clearly ex empted municipal airports from taxation where a portion of the airport was made available “for use in any trade, business or commercial enterprise,” and that the elimination of the semicolon by the amendment in 1965 indicated an intention by the legislature to remove the exemption status given municipal airports where a portion of the airport was leased for business or commercial purposes, unless such premises were “leased for the general use or entertainment of the public, or to cafeterias and concessions . . . which are incidental to the public use of the property.” Another statute originally enacted in 1872, last amended in 1963, pertaining to the exemption of property belonging to any city or municipal corporation is K. S. A. 14-1001. The exemption proviso in this statute is worded identically to the proviso in 79-201, Sixth, supra, except the semicolon after “swimming pools” is retained, and at the time here material it appeared just as 79-201, Sixth, was written prior to 1965. Wholly aside from this discrepancy in the statutes occasioned by the amendment of 79-201, Sixth, in 1965, removing the semicolon and substituting a comma, and conceding the provisions of 79-201, Sixth, as they appear in the 1965 amendment are not ambiguous and are subject to the interpretation placed upon them by the appellants, we think those portions of the municipal airport in question orally leased for wheat farming purposes are not subject to ad valorem taxation by the appellants under 79-201, supra. On the facts in this case the trial court concluded the partial use made of the municipal airport premises for wheat farming was only incidental to its exclusive use as a public municipal airport. In other words, the wheat farming operations on a portion of the airport premises was not inconsistent with the exclusive operation of the airport facility as a municipal airport. The first sentence in K. S. A. 1965 Supp. 79-201, Sixth, exempts from taxation property belonging to and used exclusively by any municipality. This portion of the statute is clear and unambiguous. Under these circumstances the court merely declares the applicability of the law to the facts in a given case. (In re Estate of Duel, 161 Kan. 593, 171 P. 2d 271.) A proviso which follows and restricts an enacting clause general in its scope should be strictly construed, so as to take out of the enacting clause only those cases which are fairly within the terms of the proviso, and the burden of proof is on one claiming the benefit of the proviso. (Emporia Totonship v. Williams, 149 Kan. 860, 89 P. 2d 919.) From the findings made and the conclusions reached, it is obvious the trial court felt the appellants failed to produce the proof required to sustain their position. The agreed facts in this case support the trial court’s findings and conclusion. In the argument of this case to the Supreme Court it was disclosed those portions of the airport which were farmed to alfalfa were not placed on the tax rolls by the appellants. Under the agreed statement of facts those portions of the airport leased for wheat farming purposes under an oral year to year lease entitled the cities operating the airport as “The Strother Field Commission” to receive the landlord’s share of the wheat produced on the leased tracts. But this fact does not alter the incidental character of the use made of these portions of the airport. The entire municipal airport facility was operated pursuant to Federal Aviation Administration regulations. The oral wheat farming lease was subject to the exclusive use of the premises as a public airport. A crippled aircraft, for example, may have been directed to make a wheels-up landing to the side of the runway in the area of growing wheat, without subjecting the municipality to damages for the destruction of a portion of the crop. The cities might well have permitted these areas of the airport to grow up in weeds and thereby have encountered the expense of continual mowing to comply with Federal Aviation standards. Here The Strother Field Commission was authorized to permit the planting of such crops as wheat in areas adjacent to runways, and this was consistent with the operation of the entire airport facility as a public airport. Here the cities, acting pursuant to their authority under eminent domain, originally determined the tracts of land necessary to be taken in connection with the airport facility. This was their exclusive right, and in the exercise of their discretion it is not subject to judicial review in the absence of fraud, bad faith or abuse of discretion. (Bowers v. City of Kansas City, 202 Kan. 268, 448 P. 2d 6.) After this airport facility was returned to the cities by the United States Government, the entire area remained intact as an airport, and no part of it has been declared by the cities to be unnecessary for airport purposes. It is being operated as an airport facility pursuant to Federal regulations, and the appellees’ decision to permit the growing of wheat in the areas in question was not only a sound practice but was economically wise. It was merely incidental to the exclusive operation of the airport facility as a municipal airport, and it did not alter the primary use of the premises as a public airport. It follows the trial court did not err in applying the law to the facts in this case, and it was erroneous for the appellants to place the property in question on the tax rolls. On the facts in this case, those portions of the municipal airport leased for wheat farming are not .subject to the ad valorem tax which the appellants seek to impose. The judgment of the lower court is affirmed.	[ 116, -22, -15, 92, 90, 96, 122, -119, 82, -67, 102, 83, -23, -118, 5, 121, 35, 29, 116, 120, -57, -73, 87, -37, 22, -69, -55, -43, -6, 79, -26, -28, 78, -79, -54, 85, 6, -62, 5, 30, -34, 4, -117, 93, -35, 0, 52, 43, 34, 75, 49, -113, -6, 41, 20, -63, -24, 44, 91, 109, 67, -80, -6, -107, 95, 23, 32, -96, -80, 5, 72, 47, -112, 57, 8, -56, 115, -90, -122, -12, 7, -39, 12, 42, 103, 1, 44, -1, -24, 9, 2, -7, -83, -27, -108, 88, 66, -128, -98, 21, 85, 82, 9, -6, -30, 5, -97, 124, -119, -50, -44, -79, -57, 108, -112, 67, -53, -125, 16, 97, -53, -58, 95, 71, 50, -101, -42, -104 ]
The opinion of the court was delivered by Fatzer, J.: The plaintiff-appellee, Carl F. Reed, alleged in his petition three causes of action: The first was for an accounting and dissolution of the Carl F. Reed and Company, a partnership; the second was for wrongful ouster from the partnership and damages for loss of profits, and the third was for wrongful ouster from the management of the partnership, and damages for loss of salary. The accounting and dissolution of the partnership has been completed and is not now in issue. The jury by special verdict found in favor of the plaintiff with respect to the second cause of action, and the plaintiff was awarded damages in the amount of $78,286. The jury’s special verdict was unfavorable to plaintiff with respect to the third cause of action. The plaintiff is a licensed pharmacist. Prior to October, 1966, he and defendant Jim Wright were partners and owned and operated a prescription center in Dodge City. Also, he and K. E. Paxton, Kiowa, Kansas, were partners and owned and operated the Garden Pharmacy in Garden City. In October, 1966, the above-mentioned partnerships were dissolved, and the plaintiff and the defendants entered into an oral agreement to form a partnership to operate prescription centers in the Gibson Discount Stores owned by the defendants Chaffin, in Garden City, Dodge City, and Liberal, Kansas, and other locations where there were Gibson Discount Stores. The partnership was known as Carl F. Reed and Company, and was formed to conduct the business of prescription centers and was to continue for an indefinite time. It was agreed the plaintiff would act as general manager of the partnership. In May, 1967, Carl F. Reed and Company opened a prescription center in a Gibson Discount Store in El Dorado, Kansas. Through the efforts of the plaintiff, the partnership was financially successful and the four pharmacies owned by the partnership increased in volume of business and profits. The plaintiff alleged that during the first part of March, 1968, the defendants wrongfully and forcefully ousted him from the partnership and refused to complete their oral contract. He alleged the partnership had inventory and capital assets in excess of $75,000, and that he would lose profits from the partnership by reason of his wrongful ouster in the amount of $200,000. He further alleged he was making a salary of $1,400 per month when he was wrongfully ousted as general manager and from the partnership, and sought damages for ouster as general manager, and for loss of salary. The defendants’ answer and cross petition alleged that while four prescription centers were in operation by the partnership, the plaintiff breached the partnership agreement by entering into competition with the partnership when he opened a prescription center in Emporia which other members of the partnership had voted not to establish. It was further alleged the plaintiff was negligent as general manager for failure to comply with pertinent regulations of the State Board of Pharmacy, which resulted in the closing of three prescription centers for approximately two weeks. On January 28, 1968, prior to the opening of the Emporia center by the plaintiff, he notified the defendants that he could not employ a pharmacist to work in Emporia for the partnership, giving as a reason that pharmacists he approached either wanted a higher salary than the partnership was willing to pay, or did not want to work for an organization controlled by non-pharmacists. At the January 28 meeting, defendant, Owen Chaffin, told plaintiff if anyone opened a center at Emporia he would be let out of the partnership. On February 27, 1968, after plaintiff and two other persons opened the Emporia Center, a partnership meeting was held and it was voted to remove plaintiff as general manager. Later, and on March 26, 1968, all partners except plaintiff voted to dissolve the partnership. The district court appointed a receiver and all the assets were sold at book value to a corporation owned by the defendants and one Hatfield. Based on the jury’s special verdict, the district court entered judgment in favor of plaintiff in the amount of $78,286. A motion for a new trial was overruled, and the defendants perfected this appeal. The defendants claim many errors occurring during the trial of the case. One contention is the district court erred in refusing to sustain their motion to set aside the findings and answers of the jury to special questions 1 and 2, because such answers were inconsistent with the answers to special questions 7 and 8. The special questions and the jury’s answers read: “1. Was the oral partnership agreement between the plaintiff and the defendants breached or broken? Answer: Yes (X) No ( ) 2. If your answer to No. 1 is ‘Yes’, state who breached or broke it and in what manner. Answer: Defendants present at the Feb. 28, 1968, meeting. They fired the manager, Carl F. Reed, who was the manager in the oral agreement. 3. Did the oral partnership have a provision that it was to run for a length of time? Answer: Yes (X) No ( ) 4. If your answer to No. 3 is ‘Yes’, please state the length of time. Answer: 5 to 10 years. 5. If you find the defendants breached or broke the oral partnership contract, state what award of money you think should be awarded to the Plaintiff to properly compensate him for his damages. Answer: $78,636.00 6. If you find that the Plaintiff breached or broke the oral partnership contract, state what award of money you think should be awarded to the Defendants to properly compensate them for their damages. Answer: $ None 7. Was the plaintiff unlawfully ousted by the defendants from his employment as manager of the pharmacies operated by the partnership? Answer: Yes ( ) No (X) 8. If your answer to No. 7 is ‘yes’, please state the amount of money, you believe, should be awarded the plaintiff for loss of wages as manager. Answer: $ None 9. Do you find that the plaintiff is entitled to vacation pay upon his employment as manager being terminated? If so, also state amount of vacation pay to which he is entitled? Answer: Yes (X) No ( ) $1,057.00 10. Did the plaintiff advise and disclose to the defendants all of the essential facts surrounding the Emporia store opening? Answer: Yes (X) No ( ) 11. If the plaintiff did not disclose all the essential facts, in what particulars did the plaintiff fail to disclose the facts to the defendants? Answer: Does not apply 12. Did the Defendants rely on the advice and facts disclosed to them by the plaintiff concerning the Emporia Store opening? Answer: Yes ( ) No (X) 13. If your anwser to Question No. 12 is yes’, state whether this reliance resulted in any damages to the defendants by the Plaintiff. Answer: Yes ( ) No ( ) Does not apply 14. Was the plaintiff negligent in the management and operation of the pharmacies of the partnership? Answer: Yes ( ) No (X) 15. If your answer to Question No. 14 is ‘yes’, state the acts of negligence committed by the plaintiff. Answer: Does not apply 16. If your answer to Question No. 13 is ‘Yes’, state what award of money you think the defendants should be awarded to properly and fully compensate them for their damages. Answer: $- Does not apply. 17. If your answer to Question No. 14 is ‘Yes’, state what award of money you think the defendants should be awarded to properly and fully compensate them for their damages. Answer: $- Does not apply. 18. When the defendants voted to relieve the plaintiff as manager, does the evidence show that the plaintiff had failed to use his best efforts to obtain pharmacists who would work for the firm at Emporia? Answer: Yes ( ) No (X) 19. State, if you know, when each of the partners learned that the stores were not properly licensed with the State Pharmacy Board. Answer: Carl F. Reed — Oct. 1966 Owen Chaffin — Dec. 1966 Bill Chaffin — Dec. 1966 Gary Chaffin — Dec. 1966 Larry McCue — Dec. 1966 Jim Wright — Oct. 1966 20. When the defendants voted to terminate the partnership does the evidence show that there has been or would be competition for pharmacists between the Emporia store and the partnership stores? Answer: Yes ( ) No (X) 21. How much, if anything, did the partnership owe the plaintiff for salary on February 28, 1968? Answer: $1,750.00 (700.00 back salary) (1,050.00 vacation pay)” The plaintiff contends the answers are not inconsistent because the jury was not referring to the same cause of action in answering questions 2 and 7 — that is, question 2 referred to the second cause of action for breach of the oral partnership agreement, and question 7 referred to the third cause of action for loss of salary by reason of ouster from the partnership management. In answer to question 1 the jury found the oral partnership agreement was breached. In answer to question 2 the jury found it was the defendants who breached the agreement, and it further found the agreement was breached for the reason the defendants present at the meeting on February 28, 1968, removed plaintiff from the management of the partnership — “[t]hey fired the manager . . .” In answer to question 7 the jury found the plaintiff was not unlawfully or wrongfully ousted by the defendants from his position of manager, and it awarded no damages for such ouster under plaintiff’s third cause of action. Damages of $78,636 were awarded by the juiy in answer to question 5 for breach of the oral partnership agreement. It is not clear from the record, but is contended by the plaintiff this amount was for breach of an agrément in the oral partnership contract to form a corporation once the business became established. Likewise, it is not clear whether the jury’s award of damages was for breach of a contract to form a corporation, or for loss of future profits from the partnership, as alleged in the second cause of action. It should be stated, there were no allegations in the plaintiff’s petition, or issue stated in the pretrial order, with respect to damages for the defendants’ failure to form a corporation. Federal Rule 49 is substantially the same as K. S. A. 60-249 (a), and interpretation of that Rule is persuasive. (Bott v. Wendler, 203 Kan. 212, 219, 453 P. 2d 100.) The authors of 2R Rarron and Holtzoff, Federal Practice and Procedure, § 1057, pp. 350-352, state the rule with respect to a special verdict as follows: “As to the legal sufficiency of a special verdict, the jury’s findings on the essential issues must be certain and definite, and must not be conflicting or inconsistent. “In determining whether there is inconsistency in the jury’s findings, the findings are to be construed in the light of the surrounding circumstances and in connection with the pleadings, instructions, and issues submitted. If a verdict is not certain in itself and does not find facts from which certainty can be attained, it is void. If the answers in respect to the controlling facts are inconsistent, the court should refuse to render a judgment and should declare a mistrial, but before doing so, may direct the jury to reconsider its verdict. Inconsistency in the findings, however, does not necessarily preclude the entry of a judgment if, as a matter of law, under no phase of the jury’s findings and in no contingency could any other judgment be rendered. If there is conflict in tire answers given by the jury it is not the province of the court to make additional findings of fact in an attempt to reconcile the answers.” 3 Vernon’s Kansas Statutes Annotated [Fowks, Harvey, Thomas], § 60-249, p. 206, states the following concerning the certainty of a special verdict: “One of the important elements of tire special verdict is exactness with respect to the issues submitted and the jury’s finding on those issues. Therefore, the special verdict must be positive, certain and definite. If the answers with respect to controlling facts are conflicting or inconsistent, the verdict should not be accepted. The court should not attempt to make additional findings to reconcile conflicting or inconsistent answers, but it may in the proper case direct the jury to reconsider its verdict. Otherwise the court should declare a mistrial.” In the instant case, special findings 2 and 7 are patently inconsistent with one another — one showing a right to an award of damages, and the other showing the contrary. In such a situation, the case was left in the condition of actually being undecided. The answers are so inconsistent as not to warrant this court in affirming entry of judgment on the juiy’s special verdict, and a new trial should be granted. It is so ordered. Price, C. J., Fatzer and Schroeder, J., dissent.	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The opinion of the court was delivered by Price, C. J.: The question here is whether — under all the facts and circumstances hereafter related — imposition of sentence and denial of probation constituted “cruel and unusual punishment.” On October 22, 1969, defendant August Eugene Mader, also known as Gene Mader, entered a plea of guilty to the charge of unlawful possession and control of a narcotic drug, in violation of K. S. A. 65-2502. Pursuant to K. S. A. 65-2519a he was sentenced to confinement in the state penitentiary for a term of not less than one (1) nor more than seven (7) years. An oral application for probation [K. S. A. 62-2227 ( 4)] was set down for hearing on October 30. At that hearing defendant introduced medical testimony as to his physical condition. The application was denied. Defendant immediately filed a notice of appeal and made application to this court for a stay of execution of the sentence pending disposition of lie appeal [K. S. A. 1969 Supp. 62-1724 (&)]. He filed the required bond and — in the meantime — execution of the sentence has been stayed. Two grounds of appeal are alleged. The first is that sentence was imposed under an unconstitutional statute (K. S. A. 65-2519a) and that sentence should have been imposed under the misdemeanor statute (K. S. A. 65-2519). Upon oral argument however, counsel conceded this point was without merit and it was abandoned. The other contention is that under the circumstances and in view of defendant’s physical condition the denial of his application for probation and incarceration in the penitentiary constitutes the imposition of “cruel and unusual punishment” in violation of the 8th amendment to the federal constitution and section 9 of the Kansas Bill of Rights. From the briefs and oral argument of this appeal the uncontradicted facts of this case appear to be as follow. Defendant, who is 30 years of age, had previously served time in the penitentiary on a conviction of grand larceny. At the time of his arrest on the narcotic drug offense in October 1969 his home was searched under authority of a search warrant. A quantity of hashish (defendant refers to it as marijuana) was found, together with pills, pipes for smoking hashish, and scales for weighing hashish. He had been living with an 18 year old girl, who — we are told — also was convicted on an identical narcotic drug charge. For some time defendant had been suffering from “Hodgkin’s Disease” involving the spleen. At the hearing of his application for probation on October 30 a physician testified that his prognosis was very poor in that his disease was “terminal” and that he had not long to live. At the conclusion of the hearing the trial court— in denying probation — stated— “The Court sometimes is moved to deliver what sometimes is referred to as a lecture or dissertation on the rights of society as compared with the rights of a defendant, but suffice it to say that the Court denies this application for probation and directs the defendant be taken to the State Penitentiary in accordance with the sentence herein with a full medical report of his condition. “There comes a time when some people have to be removed from society for the benefit of society, and in this case for the immediate benefit of minors, including a known eighteen-year-old girl. The defendant, knowing his condition, instead of getting his life in order, has indulged in such activities as we can’t tolerate in society. We have tolerated these things too long. There must be a stopping place.” On the facts related we are called upon to hold that incarceration of defendant will amount to the infliction of "cruel and unusual punishment”. We decline to so hold — for several reasons — among them being the matters mentioned by the trial court in denying probation. We also have no doubt but that defendant — if incarcerated in the penitentiary — will receive needed medical attention and that if the facts warrant — proper action will be taken by the authorities for his early release. In view of all the circumstances it may not be said that imposition of the sentence and denial of probation constituted "cruel and unusual punishment”. On the general subject see State v. Coutcher, 198 Kan. 282, 424 P. 2d 865 and State v. Kilpatrick, 201 Kan. 6, 439 P. 2d 99. The judgment is affirmed.	[ -112, -22, -3, -98, 10, 97, 26, 16, 83, -17, 101, 83, -19, 67, 5, 121, -65, 77, 84, 121, 81, -73, 119, -63, -94, -5, -102, -43, -71, 95, -12, -107, 15, 64, -102, 85, -30, -118, -111, 86, -50, 5, -120, -48, -48, 2, 48, 111, 90, 14, 49, 30, -13, 42, 30, -21, -119, 44, 91, 109, -119, -103, -103, 15, 91, 16, -94, -94, -108, 5, -48, 54, -104, 25, 0, -24, 115, -122, -122, 116, 77, -39, -124, -30, 98, 33, 45, -49, -84, -88, 30, 23, -115, -89, -102, 88, 98, -91, -74, -3, 116, 20, 14, 124, -10, 4, 119, 108, -50, -117, -68, -125, -55, 57, 78, -23, -5, 37, 1, 113, -51, -30, 82, 85, 112, -109, -90, -108 ]
The opinion of the court was delivered by Fatzer, J.: This is an appeal from a conviction of burglary in the second degree. (K. S. A. 21-520.) Near midnight on December 3, 1967, the appellant, Raymond Stuart, entered the Hill City Elks Club, Lodge No. 1995, in Graham County, by slipping the lock of an outside door with a pocketknife. The appellant was a part time employee of the club and on occasion had custody of keys to the club, but at the time of his entry on December 3, he was not on duty, nor did he have the keys in his possession. After the appellant entered the club, he closed the door, went over to the lodge room where he knew money was kept, and spread a handkerchief on the floor and placed a money sack beside it. The club was dark, and the appellant used his flashlight. The appellant was confronted by Virgil Schulte, the manager of the club, who turned tire lights on, and by Elwood Sellens, the chief of police of Hill City and a Graham County deputy sheriff. Roth men were present in the club for the reason Schulte had suspected someone was taking money from the club. A search of the appellant revealed a small pocketknife, his flash light, and a few coins; none of which were introduced into evidence at the trial. Mr. Otto Kohler, an officer of the club, was called and after he arrived, a brief discussion took place between the persons present. At the trial no evidence was offered by either party as to what was said at that time. Appellant was told to go home and not to speak to anyone about what had happened, and that the matter was to be kept within the Elk Family. Thereafter, two meetings were held between the appellant and various members and representatives of the club for the purpose of attempting to recover funds from the appellant which had previously been taken from the club. At those meetings the appellant admitted the taking of other sums of money. After collecting a small amount from the appellant in partial settlement, and on February 20,1968, the present charges were filed. Following conviction by a jury, this appeal was perfected. The appellant first contends the district court erred in allowing members of the Elks Lodge to retain seats on the jury. In researching the point, it is observed the briefs of the appellant and the appellee were inconsistent in their statement of the facts. To resolve the conflict, we obtained from the clerk of the district court the complete transcript of the proceedings, and upon examination, find appellant’s brief to be misleading on the point. Pursuant to K. S. A. 62-1412, 24 jurors were passed for cause before any peremptory challenges were required to be made by either party. The appellant claims of those 24, three were members of the Elks, two were members of the ladies Elks auxiliary, and one, a Mr. Hull, was a former member of the Elks who admitted having an opinion. The appellant also states that apparently Hull sat on the jury which reached a verdict in the case. The statement is not correct. Mr. Hull, as well as the above mentioned persons, were all excluded from the jury which tried the case. It is noted only two members of the jury had any connection whatsoever with the Elks Lodge. One was a member of the ladies auxiliary, and one was the wife of an Elks member. Both of those persons were passed by appellant’s counsel on voir dire and at no time were they challenged for cause because they were prejudiced or had an opinion in the case. If a person has no opinion of a positive character upon a material, disputed fact or issue to be determined, and if he is free from prejudice, bias or interest, he is a suitable person for jury service. Whether a prospective juror is qualified to sit in the trial of a case is a question for determination by the court, and its ruling will not be disturbed unless there has been an abuse of its discretion. (K. S. A. 62-1410: State v. Williams, 182 Kan. 468, 322 P. 2d 726.) The allegations made by the appellant with respect to the selection and composition of the jury are clearly without merit. The appellant next contends he was not advised of his rights at the time he was apprehended in the club. The point is not well taken. Ry his own testimony at the trial, there was no interrogation at the time he was apprehended, and the only evidence introduced which was obtained at that time was the handkerchief and money sack which the appellant had laid on the floor, and those items were not obtained by a search of his person. There is absolutely no evidence in the record supporting appellant’s claim. The appellant also contends the district court erred in receiving testimony as evidence of admissions against interest made by the appellant to representatives of the Elks Lodge when attempts were made to recover funds from him which had previously been taken from the club. A few days after the burglary, representatives of the Elks met with the appellant to talk about settling the amount of money they claimed he owed the club. At that meeting, the appellant wrote a personal check to the club for $150 and forfeited some pay owed to him by the club. He also made certain admissions which he claims were made in partial consideration of his not being prosecuted. However, testimony by other witnesses present at that meeting was to the contrary, and it is clear no one with whom appellant met had authority to prevent his prosecution for the crime allegedly perpetrated. No incriminating statements or admissions were made while the appellant was in the custody of police officers. There is no evidence or indication that representatives of the Elks were acting on behalf of the police to entrap appellant into making admissions against interest, and the Miranda rule relied upon by the appellant has no application. The Miranda rule applies to confessions and admissions, however, the guidelines of Miranda do not apply when admissions by the accused are made to persons other than law enforcement officers, or their agents. Volunteered statements obtained without any “process of interrogation” on the part of officers are admissible— they are not barred by the Fifth Amendment. See State v. Law, 203 Kan. 89, 452 P. 2d 862, and State v. Little, 201 Kan. 94, 439 P. 2d 387, where it was held: “An incriminating statement voluntarily made by an accused in custody in response to a question by the victim of the crime, although made in the presence of law enforcement officers, does not stem from ‘custodial interrogation,’ and its admission into evidence is not subject to the requirements set forth in Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.” (Syl. ¶ 3.) The appellant admitted at the trial the unlawful breaking and entering in the nighttime of a building in which valuable goods were kept, and the jury was justified by the evidence in inferring an intent to steal or commit a felony therein, and in rendering a verdict of guilty of burglary in the second degree. There was no error in the overruling of appellant’s motion for a new trial, and the judgment is affirmed.	[ 112, -2, -7, 28, 11, -32, 42, 58, 66, -59, -90, 87, -87, 122, 5, 97, -16, 31, 84, 96, -98, -74, 23, 33, -14, -5, -7, -59, -71, 77, -92, -57, 8, 98, -62, 85, 6, -118, -57, 92, -118, -123, -72, 70, -3, 24, 38, 107, 20, 14, -15, 31, -29, 34, 20, -24, 9, 40, 91, -83, 80, 121, -101, 29, 95, 18, -109, 2, -104, 69, -40, 46, -36, 53, 1, -24, 99, -90, 6, 116, 109, -87, -116, 38, 98, 7, 121, -57, 40, -127, 15, 51, -99, -89, -108, 73, 0, 40, -74, -97, 127, 52, 38, 116, -28, 20, 89, 108, 11, -34, -44, -111, -19, 56, -106, -30, -5, -127, 38, 112, -52, 54, 125, 87, 114, -97, 6, -112 ]
The opinion of the court was delivered by Fatzer, J.: The appeal is from a conviction of grand larceny. (K. S. A. 21-524.) The complaint, and later, an information charged the appellant with breaking and entering in the nighttime a residence in Johnson County, with intent to commit a larceny. The jury acquitted the appellant of burglary in the second degree, and returned a verdict of guilty to the charge of grand larceny. The appellant was sentenced to a term of from one to five years in the Kansas State Industrial Reformatory at Hutchinson. On January 30, 1969, at approximately 8:00 p. m., when Mr. and Mrs. Leon Mottin returned to their home at 4957 Booth, in West-wood, they were told by a neighbor that someone was in their house; whereupon, the police were notified. As a city police officer proceeded in the direction of the residence, he observed a vehicle fitting the description of the one seen near the residence. In an attempt to stop the vehicle, the patrol car was rammed by the sus pect’s vehicle. Pursuit was made into Missouri where appellant and another occupant were stopped by Kansas and Missouri authorities and taken into custody. Many items found in the vehicle and on the person of the appellant were identified as having come from the Mottin residence at 4957 Booth. Appellant claims two errors occurred during the trial. He first contends the district court erred in admitting the testimony of Mr. Mottin as to the cumulative value of the property taken from his home, without establishing the market value of each item taken. The appellant argues the evidence was incompetent to establish the value of the property taken and, therefore, a conviction of grand larceny cannot stand. K. S. A. 21-524 provides that if any person in committing burglary shall also commit a larceny, he may on conviction of both offenses be punished as prescribed for burglary and for a maximum of an additional five years for larceny. Since appellant was found not guilty of burglary by the jury, he claims the conviction of grand larceny cannot stand for the reason that a value of $50 or more was not established. Mr. Mottin testified that in his opinion the value of all the property taken was approximately $700. This was the only testimony as to value. Appellant did not cross examine Mr. Mottin as to how he arrived at the value, nor did he present evidence in rebuttal. No authority is cited for the proposition that such testimony was incompetent to establish value. In State v. Inverarity, 150 Kan. 160, 92 P. 2d 45, it was held: “An owner of property is presumed to know its value and may therefore give competent testimony with respect thereto.” (Syl. ¶ 1.) See, also, Lawson v. Southern Fire Ins. Co., 137 Kan. 591, 599, 21 P. 2d 378. The jury saw fit to believe Mr. Mottin s testimony with respect to the value of the property taken. It is the function of the jury rather than the court to weigh the evidence and pass on the credibility of the witness. Before a verdict of guilty which has been approved by the district court may be set aside because of insufficiency of evidence, it must clearly be made to appear that upon no hypothesis whatever is there substantial evidence to support the conclusion reached in the lower court. (State v. Satterfield, 202 Kan. 395, 397, 449 P. 2d 566; State v. Patterson, 200 Kan. 176, 434 P. 2d 808.) “. . . [W]here, in a prosecution for grand larceny, the undisputed evi dence fixes the value incontestably above the amount necessary to constitute the offense charged the court is not required to instruct the jury concerning the necessity for the proof to show a value above that amount.” (52A C. J. S., Larceny, § 147, pp. 697, 698, and § 152, pp. 7ll, 712.) The appellant lastly contends his rights were prejudiced and he was denied a fair trial for the reason the assistant county attorney asked a witness, “do you know the young colored gentleman sitting at the table” ? Objection to the statement was made by counsel. At this point in the proceedings the assistant county attorney stated that the race of the defendant was no secret, and that the term was used as a means of identification. He pointed out that all the jurors on voir dire stated the race of defendant would in no way affect their judgment. The district court overruled counsel’s motion for a mistrial and admonished the jury to disregard the statement of the assistant county attorney. It stated that no consideration should be given to-the matter of color or race in the case, and, further, that the assistant county attorney: “. . . did not act in bad faith and obviously did not make that reference for the purpose of prejudicing the defendant in any respect whatsoever, and the Court finds that no prejudice exists against the defendant by virtue of said remark having been made. “The Court has observed that counsel for the State has conducted himself in a very distinguished manner and with much decorum throughout the trial of this cause and that there has been nothing said or done in the course of the trial which would in any respect tend to prejudice the defendant by reason of him being of the Negro race.” The appellant sets forth the test for determining whether remarks made during the trial were prejudicial to- him — the question being did the statement actually prejudice the jury. The matter is one to be determined by the district court, and the burden is on the appellant to show an abuse of discretion in making the ruling upon which the complaint is made. (State v. Hubbard, 165 Kan. 406, 195 P. 2d 604.) The jury was told nothing it did not already know from courtroom observation, and from evidence properly admitted. Reference to the appellant was not made in derogatory terms and, as indicated, the district court immediately told the jury the question of race was not to be considered. (State v. Sheard, (Mo.) 276 S. W. 2d 191; Rouse v. Commonwealth, (Ky.) 303 S. W. 2d 265.) In the absence of evidence to the contrary, we cannot say the appellant’s substantial rights were prejudiced. The district court did not err in overruling the appellant’s motion for a new trial, and the judgment is affirmed.	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The opinion of the court was delivered by Fromme, J.: The Union Pacific Railroad Company filed a motion for rehearing on the decision affirming the judgments in this case. (Williams v. Union Pacific Railroad Co., 204 Kan. 772, 465 P. 2d 975.) The motion has been considered and it is denied. However, our attention has been directed to certain statements in the opinion which are incorrect and should be deleted. Accordingly the first full sentence at the top of page 779 of the opinion, which begins “Appellant insists it was error . . .", is deleted. In addition paragraph two on page 779 of the opinion is deleted, together with the first sentence of the next paragraph which begins, “Yet another reason appears . . We adhere in all other respects to what was said and held in the original opinion, since the portions deleted are not necessary to the opinion and do not change the ultimate decision of this court.	[ -80, 124, -43, -100, -84, 32, -94, -104, 81, -111, -90, 83, -115, -53, -108, 57, -29, 63, -11, 83, -42, -125, -58, 35, 118, -45, -13, -107, -79, 28, -10, -42, 77, 34, -118, -43, 98, 72, 85, -34, -114, 46, 8, -17, 121, -60, 52, 123, 20, 79, 49, -1, -13, 46, 24, 83, -87, 46, -17, 121, -22, 57, -82, 13, 125, 0, 33, 52, -98, -123, -52, 42, -104, 49, 17, -40, 115, -74, -62, -43, 101, -5, -116, -30, 107, 33, 77, -17, -100, -104, 46, 30, 29, -26, -106, 8, 1, 97, -73, -35, 52, 16, 7, -2, -26, 12, 29, 100, 0, -114, -110, -93, 31, 124, -98, 98, -5, -105, 2, 52, -59, -94, 92, 7, 26, -101, -113, -76 ]
The opinion of the court was delivered by Biles, J.: This is an appeal in two consolidated cases from the Marshall County District Court. Both lawsuits were filed by the county treasurer seeking equitable relief and damages against the Board of County of Commissioners of Marshall County. The centerpiece for this dispute is the money raised pursuant to K.S.A. 2008 Supp. 8-145 from fees paid by the public to the county treasurer to register and title motor vehicles. Both the Board and the county treasurer claim control over these funds. The statute requires county treasurers to collect these motor vehicle fees on the state’s behalf. It also requires the proceeds to be deposited into a statutorily-created special fund known as the motor vehicle fund. A portion of this money is set aside by law to help defray the county treasurer’s office expenses for providing this locally-based processing service for the state. The statute also provides extra compensation for the county treasurer for overseeing the endeavor. Our current controversy is a matter seemingly put to rest by this court 65 years ago in Wyandotte County Comm’rs v. Ferguson, 159 Kan. 80, 151 P.2d 694 (1944). In that case, the county commission attempted to control the county treasurer’s payments from the special fund to satisfy motor vehicle registration expenses. Ruling in the county treasurer’s favor and against the county commission’s attempt to inject itself into the process for authorizing special fund payments, this court described the nearly identical statutory language as follows: ‘We find no ambiguity whatever in section 8-145 as to the handling of die fees by die county treasurer or as to tire status of drat portion retained by [the county treasurer] for administrative purposes, or as to where die legislature lodged administrative responsibility. No words could be clearer or more definite.” (Emphasis added.) 159 Kan. at 85. Nevertheless, issues persisted in our state. See Att’y Gen. Op. No. 91-65 (answering whether a board of county commissioners may set a county treasurer’s salary based on the amount that official will receive from the state pursuant to K.S.A. 1990 Supp. 8-145); Att’y Gen. Op. No. 82-76 (answering whether a county treasurer solely determines the salary of staff provided for by K.S.A. 8-145[b] and whether a board of county commissioners has any authority over K.S.A. 8-145[b] operations); Att’y Gen. Op. No. 80-206 (answering whether a county treasurer is authorized under special circumstances as provided by law to disburse county funds without a board of county commissioners’ permission); and Att’y Gen. Op. No. 79-74 (answering whether a county treasurer may pay staff bonuses from the motor vehicle fund for overtime and whether the board of county commissioners may stop payment for staff paychecks drawn on the motor vehicle fund). We again address the question in the hope of reinvigorating the Ferguson court’s holdings and providing further guidance for county officials. The district court in this case enjoined the Board from: (1) directly or indirectly spending, allocating, or directing money from the motor vehicle fund to pay for the county treasurer’s salary for county services performed on behalf of Marshall County; and (2) directing or requiring the county treasurer to use a purchase order process to give the Board preapproval control over the treasurer’s acquisition of equipment or supplies purchased through the motor vehicle fund. We affirm those rulings. A third order entered against the Board is unchallenged on appeal. It prohibits the Board from restricting the county treasurer’s ability to hire, fire, or otherwise administer the county treasurer’s duties or the personnel employed in the county treasurer’s office pursuant to K.S.A. 8-145 and K.S.A. 19-501 et seq. We also affirm the district court’s order that Weber is entitled to be paid $10,200 for her motor vehicle registration work in 2007 as required by K.S.A. 8-145(b). This amount represents the extra compensation directed by statute to the county treasurer under a statutory formula, as determined by the district court. That money is paid from the motor vehicle fund not the county’s general fund. But we reverse the district court’s factual finding that the Board intended to set the county treasurer’s 2007 salary at $33,780 for her county-based responsibilities. The attendant order that this amount be paid to the county treasurer from the county general fund is set aside. The district court’s judgment in this respect is unsupported by the evidence. We remand the case with instructions that the district court enter orders consistent with this opinion to ensure the Board sets the county treasurer’s county salary based upon the nature and scope of the county treasurer’s responsibilities to the county, without any consideration for the extra compensation to be paid pursuant to K.S.A. 2008 Supp. 8-145. When that is accomplished, the district court is to enter judgment in Weber’s favor in such amount as will be sufficient to pay the compensation she is entitled to for her county responsibilities. Additional matters will be discussed and decided in context. Factual and Procedural Background Statutory Directives for Motor Vehicle Registration Motor vehicle registration and tiding is required by state law. K.S.A. 8-126 et seq. As part of this statutory system, all prescribed fees for annual motor vehicle registrations and certificates of title must be paid to the county treasurer of the county in which the applicant resides or has an office or principal place of business within the state. K.S.A. 2008 Supp. 8-145(a). The county treasurer collects these fees on the state’s behalf and processes the registrations and titles in the manner required by law and regulation. In exchange for these services, state law authorizes county treasurers to withhold a portion of the collected revenue to offset expenses and pay compensation. K.S.A. 2008 Supp. 8-145(b). The remainder is remitted to the Secretary of Revenue, who in turn deposits those proceeds into the state treasury. K.S.A. 2008 Supp. 8-145(c). The controversy here revolves around the fees a county treasurer withholds. The pertinent statutory provisions are found in K.S.A. 2008 Supp. 8-145(b), which states: “The county treasurer shall deposit $.75 of each license application, $.75 out of each application for transfer of license plate and $2 out of each application for a certificate of title, collected by such treasurer under this act, in a special fund, which fund is hereby appropriated for the use of the county treasurer in paying for necessary help and, expenses incidental to the administration of duties in accordance with the provisions of this law and extra compensation to the county treasurer for the services peí formed in administering the provisions of this act, which compensation shall be in addition to any other compensation provided by any other law, except that the county treasurer shall receive as additional compensation for administering the motor vehicle title and registration laws and fees, a sum computed as follows: The county treasurer, during the month of December, shall determine the amount to be retained for extra compensation not to exceed the following amounts each year for calendar year 2006 or any calendar year thereafter: The sum of $110 per hundred registrations for the first 5,000 registrations; the sum of $90 per hundred registrations for the second 5,000 registrations; the sum of $5 per hundred for the third 5,000 registrations; and the sum of $2 per hundred registrations for all registrations thereafter. In no event, however, shall any county treasurer be entitled to receive more than $15,000 additional annual compensation. “If more than one person shall hold the office of county treasurer during any one calendar year, such compensation shall be prorated among such persons in proportion to the number of weeks served. The total amount of compensation paid the treasurer together with the amounts expended in paying for other necessary help and expenses incidental to the administration of the duties of the county treasurer in accordance with the provisions of this act, shall not exceed the amount deposited in such special fund. Any balance remaining in such fund at the close of any calendar year shall be withdrawn and credited to the general fund of the county prior to June 1 of the following calendar year” (Emphasis added.) As seen from these provisions, the legislature directs how the money remaining with the county treasurer is to be handled by specifying: (1) The funds are to be deposited into a special fund; (2) this special fund is appropriated by the legislature for the county treasurer’s use to pay for necessary help and expenses incidental to administering the act and to pay extra compensation to the county treasurer; (3) the extra compensation paid is to be in addition to any other compensation provided to county treasurers by any other law; (4) the extra compensation is set by a statutory formula, based on the transactions processed, capped at $15,000; (5) the extra compensation cannot exceed the money in the special fund; and (6) if there is any balance remaining in the special fund at the calendar year’s end, it will be transferred to the county general fund. The statute was enacted in 1929. Initially, the law provided the local fee share collected by the county treasurer was credited directly to the county general fund, with the remainder transferred to the state treasurer for deposit into the highway fund. L. 1929, ch. 81, sec. 23. But in 1937, the law was amended to eliminate the deposit of the local share into the county general fund. Instead, a special fund was created to receive the proceeds dedicated for local use. This special fund then was appropriated for the county treasurer’s use in administering the statutory duties for vehicle registration and tiding. L. 1937, ch. 72, sec. 8. In 1947, a provision was added granting county treasurers extra compensation for the additional duties performed on the state’s behalf. L. 1947, ch. 97, sec. 1. Notably, the 1947 amendments gave county commissioners in counties with a population exceeding 3,000 the authority to set the county treasurer s extra compensation from die special fund up to a specified maximum. This authority was repealed in 1968 in favor of having the legislature set the extra compensation under a statutory formula. L. 1968, ch. 335, sec. 1. Subsequent amendments enhanced the local fee share and the county treasurer’s extra compensation. See L. 1990, ch. 34, sec. 4; L. 1985, ch. 45, sec. 1; L. 1969, ch. 49, sec. 1. The compensation formula increased most recently in 2006. L. 2006, ch. 136, sec. 5. The Marshall County Dispute As it does each year, the Board in early 2007 established salaries for all elected county officials for that calendar year. During discussions about the county treasurer’s pay, the Board noted the 2006 amendment to K.S.A. 8-145 increased the county treasurer’s extra compensation from the motor vehicle fund. The Board then approved a motion setting salaries for the county’s elected officials, the pertinent part of which states “[the] County Treasurer’s salary from general/motor vehicle [is set] in the amount of $33,780.00 with $23,580.00 out of the General Fund and $10,200.00 out of the Motor Vehicle fund.” (Emphasis added.) Regarding this motion, the parties stipulate it was the Board’s intention to reduce the county’s obligation to the county treasurer from its general fund for her county responsibilities by an amount equivalent to the anticipated increase in the county treasurer’s state motor vehicle fund compensation resulting from the 2006 amendment to K.S.A. 8-145. This intention was realized because the facts show that in 2006 the county general fund contributed $27,840 toward the county treasurer’s salary, but in 2007 the county’s general fund share was reduced to $23,580. The county treasurer objected to this methodology, arguing the Board was using state motor vehicle funds to supplant county general funds and denying her the extra compensation specified by state law. She noted the net result from the Board’s action, excluding a county-wide cost-of-living increase of $600, was to reduce her salary derived from the county general fund by $4,860, an amount corresponding to what she expected to receive from the new statutory raise in motor vehicle fund compensation. On October 18, 2007, Weber filed her first lawsuit against the Board in the Marshall County District Court seeking declaratory judgment, quo warranto, mandamus, injunction, and damages regarding her salary and the requirements for extra compensation spelled out in K.S.A. 8-145. She sought orders requiring tíre Board to compensate her from the county general fund for her full salary of $33,780 from January 1, and prohibiting the Board from estabhshing her county salary based upon the extra compensation under K.S.A. 8-145 for motor vehicle registration and titling. The facts giving rise to the second lawsuit began on October 29, 2007, when Weber provided the Board with a courtesy notice that her office intended to purchase computer printers to assist it in performing its state motor vehicle registration duties. The notice indicated the printers would be purchased using the motor vehicle fund and not the county general fund. On December 7, Weber directed a warrant be issued against the motor vehicle fund for the purchase. This was the procedure she used for motor vehicle fund expenditures throughout her tenure as county treasurer without previous Board objection. But the Board stopped the warrant from issuing on December 10 and declared Weber needed to obtain the Board’s express approval in the future before spending any money from the motor vehicle fund. The parties agree this was the first time the Board ever interfered with the county treasurer’s expenditures from the motor vehicle fund. The Board’s timing appears retaliatory for the first lawsuit. On December 18, 2007, Weber filed her second action seeking declaratory and injunctive relief to prevent the Board from controlling expenditures from the motor vehicle fund. Sometime later, the Board withdrew its restriction on the computer printer purchase, but persisted with the legal issue and continued arguing the Board controlled the county treasurer’s access to the motor vehicle fund. These issues were tried to the district court on stipulated facts and arguments of counsel. Relying on Ferguson, the lower court found the statute was plain and unambiguous. The law, the district court ruled, vests the county treasurer with authority to administer and use the motor vehicle fund without interference or usurpation from the Board. The district court continued, stating: “The Kansas legislature has at no time, authorized [the Board] to have access, control or dispositional authority over the Motor Vehicle Fund except as to the balance of tire Motor Vehicle Fund which remains at the conclusion of the calendar year, and which is thereafter paid over to the Defendant’s general fund on or before the next June 1st. The [Board’s] interest vests only at the conclusion of the calendar year, after payment of the necessary expenses for help and incidental items relative to the administration of the motor vehicle laws and file payment of extra compensation to the [county treasurer].” As to the county treasurer s salary, as set by the Board, the district court held: “[The Board] established [the county treasurer’s] county salaiy for 2007 by resolution on January, 22, 2007, at $33,780.00. [The Board] has admitted that [the county treasurer] has performed all of her duties for Marshall County and earned her full county salaiy relative to such duties. [The Board] must establish and pay that salary for those duties only from the county general fund. The compensation to be derived by [the county treasurer] from the Motor Vehicle Fund is to be in addition to that compensation set by the [Board]. [The Board] has no legislative, statutory or inherent power to utilize the Motor Vehicle Fund to pay [the county treasurer’s] salary. The Court finds that [the Board’s] actions of January 22, 2007 authorizing payment from the Motor Vehicle Fund relative to [the county treasurer’s] salary, constitutes an unlawful appropriation of the Motor Vehicle Fund by [the Board].” (Emphasis added.) On the strength of these findings, the district court ordered the Board to pay Weber $33,780 from tire county general fund as her county salary for 2007. The district court further ordered the Board “recredit” $10,200 to the motor vehicle fund, ruling that this money was misappropriated by the Board, and then ordered the $10,200 “be made available to [Weber] as additional and extra compensation to the extent compliant with K.S.A. 8-145.” The district court’s order in effect set the county treasurer’s compensation from all sources for 2007 at $43,980. The district court issued permanent injunctions, as noted above, prohibiting the Board from: (1) using motor vehicle funds to finance the county treasurer’s salary for services performed on the county’s behalf; (2) controlling the county treasurer’s official duties or personnel contrary to K.S.A. 19-503; and (3) controlling the county treasurer’s purchases through the motor vehicle fund. The Board timely appealed from the district court’s injunctions as to the Board’s authority in setting the county treasurer’s salary and the Board’s control over expenditures from the motor vehicle fund. The Board also appealed die court’s order to pay the county treasurer’s full $33,780 salary from the county general fund. The appeals from each case were consolidated. This court transferred the consolidated appeal from the Court of Appeals. See K.S.A. 20-3018(c) (transfer on court’s own motion). Analysis After stating our standard of review, we will address first the constitutional and statutory roles played by boards of county commissioners and county treasurers. With that background, we will address each challenge to the district court’s decision raised by the Board. In the context of those arguments, we will discuss the motor vehicle registration statutes and this court’s decision in Ferguson, which was the last time we rejected an attempt by county commissioners to gain control over the motor vehicle fund. Standard of Review This case’s resolution depends upon a statutory interpretation of K.S.A. 2008 Supp. 8-145, which presents a question of law over which we have unlimited review. See Double M. Constr. v. Kansas Corporation Comm'n, 288 Kan. 268, 271, 202 P.3d 7 (2009). When interpreting a statute, this court must give ordinary words their ordinary meaning. 288 Kan. at 271. Further, if the statute is plain and unambiguous, the court need not speculate as to legislative intent or resort to statutoiy construction. 288 Kan. at 271 (quoting In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 [2007], cert. denied 172 L. Ed. 2d 239 [2008]). In addition, in cases decided on stipulated facts, such as this one, an appellate court has “ ‘as good an opportunity to examine and consider the evidence as did the court below, and to determine de novo what the facts establish.’ ” Crawford v. Hrabe, 273 Kan. 565, 570, 44 P.3d 442 (2002) (quoting Heiman v. Parrish, 262 Kan. 926, 927, 942 P.2d 631 [1997]). Under this rationale, the court is free to review the stipulated facts and draw its own conclusions. County Authority The Kansas Constitution empowers the legislature to organize counties and to delegate local legislative and administrative powers to political subdivisions. Kan. Const, art. 2, § 21, art. 9, §§ 1, 2, and 5. Counties are political subdivisions of the state. State ex rel. Tomasic v. Kansas City, Kansas Port Authority, 230 Kan. 404, 414, 636 P.2d 760 (1981). Further, each organized county within the state is a body corporate and politic, may sue and be sued, and each has home rule powers. K.S.A. 19-101. The legislature established a board of county commissioners in each county to exercise county powers. K.S.A. 19-103. This board must annually prepare the county’s budget. K.S.A. 79-2927. This board also is authorized to examine and settle all accounts or receipts and expenses of its county, and a board has “exclusive control of all expenditures accruing . . . [including] any other county expenditures.” K.S.A. 19-212; K.S.A. 19-229. Because a board has such expansive authority regarding county governance, this court’s review of a board’s actions is limited and depends upon the conduct at issue. In governing its county, a board makes legislative, administrative, judicial, or quasi-judicial decisions. Umbehr v. Board of Wabaunsee County Comm’rs, 252 Kan. 30, 33, 843 P.2d 176 (1992). Setting a county official’s salary is an administrative action. See Brelsford & Gifford Co. v. Smith County Comm’rs, 139 Kan. 339, 341-42, 31 P.2d 25 (1934); Concannon v. Board of Linn County Comm’rs, 6 Kan. App. 2d 20, 626 P.2d 798, rev. denied, 229 Kan. 669 (1981). A court may review a board’s administrative actions if they are illegal, as alleged here. Umbehr, 252 Kan. at 36. Finding illegality in official conduct “relates to the procedural aspects of the proceedings and the determination of whether the action taken was within the authority of the agency or board.” 252 Kan. at 36-37. Such actions generally are judicially reviewed through extraordi nary remedies such as quo warranto, mandamus, declaratory judgments, and injunctions. 252 Kan. at 36. County Treasurers Duties A county treasurer has both county and state duties imposed upon that office by law. The county duties are provided in K.S.A. 19-501 et seq. They include receiving and disbursing money, maintaining an account of receipts and expenditures, preparing financial reports, paying and redeeming county warrants, and collecting taxes. K.S.A. 19-501 et seq. When requested by the county commission, a county treasurer must submit to a surprise cash count or provide an immediate accounting of the books. K.S.A. 19-506; K.S.A. 19-507. A county treasurer s state duties are found in K.S.A. 8-143 et seq. The primary state responsibility is the one at issue here — processing motor vehicle registrations and certificates of title and transferring the proceeds received from fees charged for such registration. K.S.A. 2008 Supp. 8-145. A county treasurer also is charged with paying for necessary help and expenses incidental to the administration of these responsibilities. K.S.A. 2008 Supp. 8-145(b). To offset these costs, the county treasurer is permitted by statute to hold back a specified portion from fee proceeds. K.S.A. 2008 Supp. 8-145(b). In this case, the parties stipulated as to the time commitments required from Weber to perform her county and state responsibilities. This stipulation noted the county treasurer is charged with “a multitude of duties on behalf of Marshall County” performed “during and outside of posted business hours.” Similarly, the parties agreed the county treasurer’s duties on the state’s behalf were “separate and distinct” from those performed for the county. The stipulation also provided that Weber’s state duties were performed during and outside of posted business hours. Notably, the parties further stipulated: “[The county treasurer’s] commitment of time and effort relative to her county duties does not lessen by virtue of her obligation to perform duties on behalf of the State of Kansas. The volume of county services for which [the county trea surer] is responsible has increased in recent years, while at the same time, [the county treasurer’s] duties relative to the State of Kansas have also increased.” County Treasurer Control Over the Motor Vehicle Fund The Board argues it controls purchases made by the country treasurer from the motor vehicle fund. The Board notes state law generally gives it exclusive domain over county finances under K.S.A. 19-229 (settling county accounts); K.S.A. 19-212 (exclusive control of county expenditures); and K.S.A. 79-2925 et seq. (control of county budget). The Board raises additional arguments regarding statutory checks and balances under K.S.A. 19-506 and K.S.A. 19-507, as well as miscellaneous arguments regarding the board’s overall interest in county property and potential violations of the cash-basis law. On the other hand, Weber argues the plain language in K.S.A. 2008 Supp. 8-145(b) is specific as to die motor vehicle fund and that this specificity controls over arguments framed by the Board about its general statutory authority. The county treasurer is correct. K.S.A. 2008 Supp. 8-145(b) directly counters the Board’s position. It creates a special fund for the deposit of the local share of proceeds from vehicle registrations and titling and then specifies who controls disbursements from the fund and for what purpose. The statutory language provides this special fund “is hereby appropriated for the use of the county treasurer in paying for necessary help and expenses incidental to the administration of duties in accordance with tire provisions of this law.” (Emphasis added.) No role is provided for the Board while that money is in the special fund. There is no statutory basis for the Board to claim otherwise. As noted above, this court reviewed the same statutory language in the same context 65 years ago, and concluded, “[n]o words could be clearer or more definite.” Ferguson, 159 Kan. at 85. In that case, as is the one before us now, the county commission claimed authority over the special fund. This court rejected that claim and stated, “it is perfectly clear that the treasurer and not the board is charged with administrative responsibilities under the act.” 159 Kan. at 85. The court then noted the county treasurer’s administrative responsibilities included control over the special fund. As to the county commission s contentions that other statutes giving the board general authority over county purchasing and county funds also applied to the motor vehicle fund, this court noted statutes regarding specific subjects control over those with more general application. This court concluded, “[cjlearly 8-145 makes ‘special provision’ for payment of expenses by the treasurer out of the special fund.” 159 Kan. at 86. Accordingly, the court found K.S.A. 8-145 controlled over the county commission’s more general statutory authority. Finally, the Ferguson court held the language in K.S.A. 8-145 demonstrated the county’s only financial interest in motor vehicle registration and titling fees was if the special fund had a balance at calendar year’s end. The court found, “[t]his clearly indicates the legislative intent that no part of the fees shall be considered as part of the general funds of the county.” Wyandotte County Comm’rs v. Ferguson, 159 Kan. 80, 86, 151 P.2d 694 (1944). The Ferguson court’s analysis remains valid. The statutory language at issue in that case is nearly identical to the language now before this court. We find K.S.A. 2008 Supp. 8-145 gives the Board no interest in the motor vehicle fund whatsoever, except a contingent interest at the end of a calendar year, if any proceeds remain after the county treasurer fulfills the state responsibilities for motor vehicle registration and tiding set out in the statutes. There is nothing in the statute giving the Board any authority to approve, reject, or modify motor vehicle fund expenditures. We also reject the Board’s contention that its oversight promotes appropriate expenditures from the fund. Indeed, to give the Board the approval authority it is arguing for would embed a conflict of interest into this statute because the Board could frustrate spending from the special fund simply to safeguard for itself an ending year balance for transfer to the county’s general fund, which the Board controls. This would put the county’s interests above the state’s and subordinate the statutory purposes for efficient administration of motor vehicle registration and tiding. The legislature protects against such a conflict of interest by expressly appropriating the special fund for the county treasurer’s use in paying for necessary help and expenses incidental to admin istering the motor vehicle registration statutes. We will not read into the statute provisions that could so easily subvert the law’s obvious purposes. As stated in Ferguson, a board’s interest does not attach unless there is a balance in the special fund at the end of the calendar year. Until that time, a board plays no part in the special fund’s administration. 159 Kan. at 85. The district court was correct to find the county treasurer alone is statutorily vested with the authority to administer and use the motor vehicle fund without interference or usurpation by the Board. The district court’s ruling is consistent with the plain language in the statute and this court’s decision in Ferguson. We affirm the district court’s order enjoining the Board from attempting to impose a preapproval process over the county treasurer’s expenditures from the motor vehicle fund. The County Treasurers Salary In 1947, the legislature added language to K.S.A. 8-145(b) providing “extra compensation to the county treasurer for the services performed by [the county treasurer] in administering the provisions of this act, which compensation shall be in addition to any other compensation provided by any other law.” L. 1947, ch. 97, sec. 1. The statute directs this extra compensation be paid from the special fund in accordance with a statutory formula. As noted above, the legislature adjusted the formula from time to time, most recently in 2006, to increase the extra compensation for county treasurers. L. 2006, ch. 136, sec. 5. Language giving the board of county commissioners in counties with populations exceeding 3,000 some authority over the amount of extra compensation received by a county treasurer was stricken more than 40 years ago in favor of letting the statutory formula control. L. 1968, ch. 335, sec. 1. The stipulated facts are that the Board set Weber’s 2006 salary at $33,180 with that total sum to be paid partially from county general funds ($27,840) and motor vehicle funds ($5,340). This was an acknowledgment that the county treasurer performs distinct responsibilities for both the county and the state, as discussed above. But there is an additional stipulation that the Board never ascer tained what proportion of the county treasurer s time is split between county and state duties. The parties advised the district court that Weber’s county and state responsibilities each increased in recent years. There was no other study or analysis performed to determine how much time the county treasurer was expending on behalf of the county or the state. Nevertheless, the facts are that when the Board set Weber’s 2007 salary it intended to reduce the county’s general fund obligation by an amount equivalent to the anticipated increase in Weber’s motor vehicle fund extra compensation provided by the 2006 amendment to K.S.A. 8-145. See L. 2006, ch. 136, sec. 5. The results reflect this intention because the county’s general fund obligation for Weber’s salary dropped from $27,840 in 2006 to $23,580 in 2007. This savings to the county corresponds exactly with Weber’s projected increase in motor vehicle fund extra compensation, less a $600 annual increase the county gave all its elected officials. Weber obviously did not get the benefit from the 2006 statutory increase provided in the law. The legal question then is whether the statutory language in K.S.A. 2008 Supp. 8-145 permits the Board to siphon away the monetary benefit flowing from the pay increase the legislature approved. To answer this, we need look no further than the statute’s plain language. It characterizes the county treasurer’s compensation under the formula as “extra” and expressly states this stipend “shall be in addition to any other compensation provided by any other law.” (Emphasis added.) It certainly does not provide that the additional funding is to supplant the county’s general fund and divert the benefit specified in the law from the county treasurer. The Board argues there is no law requiring county treasurers actually receive the extra compensation provided for in K.S.A. 2008 Supp. 8-145, but the Board is wrong. The statute specifies the extra compensation is to be in addition to any other compensation received by county treasurers under any other law, not a replacement for other compensation. It is impossible for the extra compensation to be in addition to any other compensation if it is first subtracted from other money a county treasurer earned performing other responsibilities. The Board’s argument is without merit. We hold it was improper for the Board to consider the county treasurer s extra compensation from the motor vehicle fund when it calculated her 2007 salary for her county responsibilities, which it clearly did in this case. We affirm the district court’s ruling that the county contravened the law by using the extra compensation authorized by K.S.A. 8-145(b) to replace county general funds otherwise payable to the county treasurer as salary for her county responsibilities. The Board’s action subverted the legislative intent to give the county treasurer the benefit of additional compensation for processing motor vehicle registrations and titling. The district court’s order preventing the Board from using tire motor vehicle fund to finance any portion of the county treasurer’s county salary was correct. We also affirm the district court’s order that Weber is entitled to be paid $10,200 for her motor vehicle registration work in 2007 as required by K.S.A. 8-145(b). But this does not complete our inquity regarding the county treasurer’s salary. The district court made an additional factual determination that is not supported by the evidence. The district court found the Board intended to set the county treasurer’s “county salary” for 2007 at $33,780. The district court premised its remedy on this finding and ordered the Board to pay that amount from the county general fund only. The effect of this was to give the county treasurer a 2007 salary of $33,780 for her county responsibilities, payable entirely from county funds, plus $10,200 from the motor vehicle fund under K.S.A. 8-145(b). The facts do not support the district court’s finding that the Board intended to pay the county treasurer $33,780 for performing her county responsibilities. As discussed above, the Board’s formal resolution setting salaries for elected county officials plainly identified the county treasurer as an official who was to be paid out of multiple funds for multiple purposes. It provided her total salary would be $33,780, with $23,580 paid for by the county general fund and $10,200 by the motor vehicle fund. Similarly, the exhibit attached to the parties’ stipulation of fact, entitled “2007 Elected Officials Wage Scale,” showed the same salary composition for the county treasurer from the two funds. It was error for the district court to conclude from this exhibit that the entire $33,780 was intended by the Board to come from county general funds and must be paid from those general funds. We find the record before us is inadequate to demonstrate what county salaiy the Board would have set for Weber’s county responsibilities had it not contaminated its deliberations with its overriding desire to misappropriate state motor vehicle funds for the Board’s own purposes. The Board conceded by stipulation that it never ascertained what proportion of time the county treasurer devoted to county and state responsibilities. It further conceded Weber’s county and state duties each increased in recent years. But the Board never determined an appropriate base salaiy to ensure the county treasurer was fairly paid for county work. Based on this record, it was error for the district court to conclude the Board intended to compensate Weber $33,780 for her county salary and then direct the Board to pay that amount from the county general fund. At oral arguments the parties’ counsel acknowledged it would be possible for the Board to ascertain and allocate the county treasurer’s time commitment for performing county functions and then set an appropriate salary for her on that basis. While other approaches may be valid also, such a study, if accurately and fairly conducted and followed, could provide the factual basis upon which the Board could demonstrate that it lawfully set the county treasurer’s salaiy for her county responsibilities. We remand the case on this limited aspect with directions to the district court to ensure the Board sets the county treasurer’s county salary without any consideration for the extra compensation to be paid pursuant to K.S.A. 2008 Supp. 8-145. The district court may accomplish this by giving the parties an opportunity to reach agreement as to what the appropriate compensation should be, or by allowing the Board to measure and set the county treasurer’s salary for her county responsibilities without considering the extra compensation under K.S.A. 2008 Supp. 8-145(b), or both. But if the Board resets the salaiy and Weber wishes to challenge whether the reconstituted salaiy is lawful, such dispute will need to be resolved by the district court in further proceedings. When finally accomplished, judgment is to be entered in Weber s favor and against the Board in such amount as will be sufficient to pay her the compensation she is entitled to receive for her county responsibilities. The district court’s judgment is affirmed in part, reversed in part, and remanded with directions.	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The opinion of the court was delivered by Lockett, J.: The defendant, Athen Phifer, appealed his conviction of one count of indecent liberties with a child in violation of K.S.A. 1986 Supp. 21-3503 to the Court of Appeals. Phifer raised two issues; (1) The admission of the suppression hearing transcript into evidence at trial violated his right to confrontation, and (2) the trial judge abused his discretion by allowing the late endorsement of additional State witnesses. The Court of Appeals refused to consider the first issue Phifer raised, contending that he had not properly objected to the admission of the transcript. The court found no error on the second issue and affirmed the conviction in an unpublished opinion filed November 26, 1986. We accepted Phifer’s petition for review. Phifer was charged with two counts of indecent liberties with a child. K.S.A. 1986 Supp. 21-3503. Each count was based upon separate incidents involving a fifteen-year-old girl, M.F. The jury convicted Phifer of the first count and found him not guilty on the second. M.F. testified in both incidents that her resistance was overcome by force and fear. The first incident occurred on February 23, 1985. Phifer, who was known to the family, came to the family residence while M.F.’s parents were absent. After watching television and playing dominoes, Phifer began kissing M.F. and making other advances. He then had intercourse with M.F. in her bedroom. The second incident occurred several weeks later. M.F.’s parents were again absent when Phifer came to the house. After a short conversation, Phifer had sexual intercourse with M.F. on the living room floor. M.F. confided these events to a friend. The story eventually reached M.F.’s aunt, who informed M.F.’s mother and stepfather. After being informed of the events, M.F.’s stepfather drove to Phifer’s house and confronted Phifer. A fight ensued, and the police were called. M.F.’s mother told the police of Phifer’s sexual involvement with her daughter. Phifer was taken to the police station where he was interviewed by Detective Styles while Detective Downing interviewed M.F. After Styles advised Phifer of his Miranda rights, Phifer agreed to talk to him. Phifer made incriminating statements about having sexual intercourse with M.F. Phifer later made similar statements to Detective Downing. At trial Detective Styles was unable to testify because he was in the hospital. Phifer’s attorney objected when the State moved for a continuance. The trial judge then suggested that Styles’ testimony at the Jackson v. Denno hearing on the defendant’s motion to suppress be admitted instead of continuing the trial. The trial judge allowed the court reporter from the suppression hearing and Detective Downing to be endorsed as additional State’s witnesses. The transcript of Detective Styles’ testimony at the suppression hearing was read to the jury by the court reporter. The jury found Phifer guilty of the first count of indecent liberties, but not guilty of the second count. He now appeals his conviction. The Court of Appeals declined to consider Phifer’s claim that his constitutional right to confrontation had been violated when the trial judge allowed the State to introduce Styles’ testimony at the suppression hearing into evidence at his trial. The Court of Appeals found that, since Phifer’s attorney had failed to object specifically to the introduction of the suppression hearing evidence, he had not properly raised the constitutional issue. We disagree with the Court of Appeals’ narrow ruling. While Phifer’s attorney did not use the specific phrase “confrontation clause,” he did object to the use of the transcript on the basis that he would be unable to cross-examine Styles about the inconsistent statements of M.F. and, therefore, should have been allowed to raise that issue on appeal. Even where an objection is not sufficient to raise the constitutional issue or the issue was not considered by the trial court, an appellate court may consider such an issue where the newly asserted issue involves only a legal question arising on proved or admitted facts which will be finally determinative of the case or if consideration is necessary to serve the ends of justice or to prevent a denial of fundamental rights. State v. Baker, 11 Kan. App. 2d 4, 9, 711 P.2d 759 (1985). Prior to the adoption of the Kansas Code of Civil Procedure, the admissibility of evidence had been determined by the common law and a few scattered statutes. In 1963 the legislature adopted the Code of Civil Procedure, K.S.A. 60-101 et seq. The Code requires that all testimony of witnesses shall be taken in open court, unless otherwise provided. All evidence shall be admitted which is admissible under the specific statutes or Article 4 of Chapter 60. K.S.A. 60-243. Under the civil code there is a presumption of admissibility of relevant evidence unless a rule of evidence excludes it on constitutional or public policy grounds. Based upon these considerations, the legislature excluded all hearsay testimony from being admitted into evidence in a trial, then created numerous statutory exceptions which allow the introduction of hearsay statements into evidence. K.S.A. 1986 Supp. 60-460(c) provides in pertinent part: “60-460. Hearsay evidence excluded, exceptions. Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible except: “(c) Depositions and prior testimony. Subject to the same limitations and objections as though the declarant were testifying in person, (1) testimony in the form of a deposition taken in compliance with the law of this state for use as testimony in the trial of the action in which offered or (2) if the judge finds that the declarant is unavailable as a witness at the hearing, testimony given as a witness in another action or in a preliminary hearing or former trial in the same action, or in a deposition taken in compliance with law for use as testimony in the trial of another action, when . . . (B) the issue is such that the adverse party on the former occasion had the right and opportunity for cross-examination with an interest and motive similar to that which the adverse party has in the action in which the testimony is offered, but the provisions of this subsection (c) shall not apply in criminal actions if it denies to the accused the right to meet the witness face to face.” (Emphasis added.) The right of a person on trial for a crime to be confronted with witnesses against him is secured or guaranteed by the Sixth Amendment to the United States Constitution. The confrontation provision of the Sixth Amendment is obligatory on the states by reason of the Fourteenth Amendment to the Constitution. 21A Am. Jur. 2d, Criminal Law § 721. The United States Supreme Court has held that under the confrontation clause of the federal Constitution, preliminary hearing testimony is admissible regardless of whether the accused has an effective opportunity at his subsequent state criminal trial to confront the declarant who gave such testimony, where (1) the declarant was under oath at the preliminary hearing, (2) the accused was represented at the preliminary hearing by the same counsel who later represented him at the trial, (3) the accused had every opportunity at the preliminary hearing to cross-examine the declarant as to his statement, and (4) the proceedings at the preliminary hearing were conducted before a judicial tribunal, equipped to provide a judicial record of the hearing. California v. Green, 399 U.S. 149, 26 L. Ed. 2d 489, 90 S. Ct. 1930 (1970). Refore prior testimony is allowed, the State must show that the witness is unavailable. Once unavailability is shown, the courts require that the preliminary examination testimony have certain “indicia of reliability” before it will be allowed into evidence at a subsequent trial. This generally requires a showing that the accused had an adequate opportunity to cross-examine the witness, that the testimony to be given is a correct version of the testimony received at the preliminary proceeding, and that the testimony was taken at a regularly constituted judicial proceeding. When a witness is unavailable at trial, virtually all jurisdictions allow the introduction of testimony given at a preliminary examination, if the accused was present at the preliminary examination and had an opportunity to cross-examine the witness. Although the courts in most cases recognize that the personal presence of the witness may be more advantageous to the accused, they admit such testimony because they find that the rights of the public are not to be defeated in order that an incidental benefit may be preserved to the accused. Annot., 38 A.L.R.4th 378, § 2. Kansas has held that not only may testimony from a preliminary hearing be introduced at a subsequent criminal trial under K.S.A. 1986 Supp. 60-460(c)(2), but under 60-460(c)(l) depositions of an absent witness taken pursuant to K.S.A. 1986 Supp. 22-3211 may be introduced into evidence. State v. Hernandez, 227 Kan. 322, 607 P.2d 452 (1980). Other courts have allowed the admission of testimony from suppression hearings where the State is able to prove the witness is unavailable and the defense had an adequate opportunity to cross-examine the witness. State v. Schad, 129 Ariz. 557, 633 P.2d 366 (1981). See United States v. Zurosky, 614 F.2d 779 (1st Cir. 1979), and Younger v. State, 496 A.2d 546 (Del. 1985). Here, the prior testimony of Detective Styles at the suppression hearing met the constitutional requirements of confrontation required by other jurisdictions for admission of that testimony into evidence at the trial of the accused. The witness was under oath, Phifer was represented by the same counsel who later represented him at the trial, the accused had every opportunity at the preliminary hearing to cross-examine the declarant as to his statement, the proceedings at the suppression hearing were conducted before a judicial tribunal equipped to provide a judicial record of the hearing, and the witness was unavailable to testify at the trial. Phifer claims that the trial judge exceeded his statutory authority when the judge allowed the testimony taken at a suppression hearing to be introduced in his criminal trial. He argues that where a declarant is unavailable as a witness at trial, K.S.A. 1986 Supp. 60-460(c)(2) allows only the testimony from the preliminary hearing or a former trial in the same action to be admitted into evidence in a criminal trial and that the statute requires that the accused have the right and opportunity for cross-examination with a similar interest and motive before that testimony can be admitted as evidence in a criminal trial. We note that K.S.A. 1986 Supp. 60-460(c)(2) uses the term “preliminary hearing” while K.S.A. 1986 Supp. 22-2902 discusses the “preliminary examination.” Even though the legislature used the term “preliminary examination” in K.S.A. 1986 Supp. 22-2902 when the Kansas Code of Criminal Procedure was adopted, we have never been consistent when labelling that hearing in our opinions. Both of the Kansas courts of appeal have treated “preliminary hearing” and “preliminary examination” synonymously. Did the legislature intend K.S.A. 1986 Supp. 60-460(c)(2)’s “preliminary hearing” to be synonymous with the “preliminary examination” of K.S.A. 1986 Supp. 22-2902? If the terms are synonymous, 60-460(c)(2) permits only the testimony of an unavailable witness given at the preliminary examination, at a former trial of the same action, or at a deposition taken pursuant to K.S.A. 1986 Supp. 22-3211 to be introduced at the trial of an accused in a criminal action. The fundamental rule of statutory construction, to which all others are subordinate, is that the purpose and intent of the legislature governs when that intent can be ascertained from the statute. Legislatures have encouraged the evolutionary elaboration of law by the courts through the deliberate enactment of highly generalized statutes. Therefore, in determining legislative intent, courts are not bound to an examination of the language alone but may properly look into the causes which impel the statute’s adoption, the objective sought to be attained, the statute’s historical background, and the effect the statute may have under the various constructions suggested. In re Petition of City of Moran, 238 Kan. 513, 713 P.2d 451 (1986). In our opinion, the legislature intended K.S.A. 60-460(c)(2)’s “preliminary hearing” and K.S.A. 22-2902’s “preliminary examination” to be synonymous. Therefore, even where an accused has had an adequate opportunity to cross-examine a witness at a suppression hearing and the witness is unavailable to testify at the accused’s trial, K.S.A. 60-460(c)(2) prohibits that testimony from being introduced into evidence against an accused in a criminal trial. The trial judge erred in admitting that testimony into evidence in Phifer’s criminal trial. If the introduction of Detective Styles’ testimony violated Phifer’s constitutional right of confrontation, we would be required to determine beyond a reasonable doubt whether that error had little if any likelihood of having changed the result of the trial. State v. Knapp, 234 Kan. 170, 671 P.2d 520 (1983). Because the introduction of the testimony violated a statutory prohibition, the question is whether the error was harmless and did not prejudice Phifer’s right to a fair trial. Errors which do not affirmatively appear to prejudicially affect the substantial rights of the accused do not require reversal when substantial justice has been done. State v. Mitchell, 234 Kan. 185, 196, 672 P.2d 1 (1983). The trial record shows that, while Phifer was interviewed by Detective Styles, Detective Downing interviewed M.F. Phifer made incriminating statements about having sexual intercourse with M.F. to Detective Styles. Later, Phifer made similar statements to Detective Downing. During the trial, Detective Downing merely corroborated Styles’ testimony and Downing was cross-examined about Phifer’s incriminating statements. During cross-examination, defense counsel asked Downing about his interviews with M.F. and elicited the information he required from the unavailable witness, Styles. M.F. also testified and was cross-examined regarding the inconsistent statements she had made to Detective Styles. Through cross-examination of Downing and M.F., Phifer was able to effectively present his defense to the jury. Under the facts, the introduction of the transcript of Detective Styles’ testimony into evidence at trial was harmless error. Phifer contends that the trial court erred in allowing the late endorsement of the court reporter and Detective Downing as witnesses. The Court of Appeals found no error in the late endorsement. The endorsement of additional witnesses on an information is a matter of judicial discretion and will not be the basis for reversal absent proof of an abuse of discretion. The test of abuse of the exercise of that discretion- is whether or not the rights of the defendant were unfairly prejudiced by the endorsement. State v. McNaught, 238 Kan. 567, 583, 713 P.2d 457 (1986). The late endorsement of witnesses rests in the sound discretion of the trial judge, whose ruling will not be disturbed except for abuse. Such abuse may occur when use of a witness results in surprise or material prejudice to the defendant preventing fair preparation of his defense, but there must be some showing of prejudice to the defendant to constitute reversible error. State v. Wilson & Wentworth, 221 Kan. 359, 559 P.2d 374 (1977). Phifer failed to establish that the endorsement of the court reporter or Downing was a surprise or that it resulted in prejudice to him. He was initially notified of the possibility of Downing testifying when a praecipe and subpoena were requested by the State seven weeks before trial and noted on the appearance docket. At the suppression hearing, Styles testified that he conducted two interviews, one by himself and the second one in the presence of Downing. The defendant’s attorney was, therefore, aware that Downing had knowledge of the interviews and both Phifer and his attorney knew that the court reporter recorded the testimony of Detective Downing at the suppression hearing. In addition, during the trial, defense counsel did not ask for a continuance to interview Downing in preparation for cross-examination. There is no evidence to show that the defense was surprised by the endorsement of the witnesses. The trial judge did not abuse his discretion by allowing the State to endorse the two additional witnesses. The judgments of the district court and the Court of Appeals are affirmed.	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The opinion of the court was delivered by Fatzer, J.: This case involves the working papers of a public accountant. The action was in replevin to recover certain books and records alleged to be owned by appellees, plaintiffs below, to which appellant, defendant below, filed his third amended cross petition with his third amended answer. The amended cross petition contained four causes of action: The first sought to recover actual damages for “the value of the use” of the property alleged to have been sustained by appellant, based upon “the usable value and money savings to the plaintiffs” by their wrongfully obtaining possession of the books and records, and presents the principal question involved; the second pertained to nominal damages, and damages “for expenses and time expended in pursuit of possession of the said property”; the third was for the balance due on account for professional services, and the fourth was for punitive damages in the amount of $55,000. The appeal is from an order sustaining appellees’ motion to strike the allegations of actual damages in the first cause of action, and for damages for pursuing the property as alleged in the second cause of action. The parties will be referred to as they appeared in the court below. The action was commenced on Saturday morning, September 19, 1959, at 8:23 a. m. Plaintiffs filed their petition, affidavit in replevin, and undertaking in replevin, and an order for delivery of property was issued by the clerk of the district court. All papers necessary to file the action were prepared and executed by plaintiffs three days before — on Wednesday, September 16, 1959, except the undertaking in replevin which was prepared and executed the following day, Thursday, September 17. The petition alleged plaintiffs were the owners and entitled to immediate possession of the personal property in the possession of defendant, as follows: “All books, records, journals, ledgers, correspondence, documents, checks, statements, receipts, memorandum, detailed recordings of deposits to and withdrawals from all bank accounts, analyses of bank accounts, summaries, reports, adjusting journal entries, identifying source documents and all other instruments and records of every kind and nature for and pertaining to the years 1948 through 1956 which in any way involve or pertain to these plaintiffs, or transactions affecting them, or any of them, including business partnerships and accounts known as Ablah Hotel Supply Company, Ablah Manufacturing Company, Ablah Meadows, Ablah Building Account and the corporation Ablah Hotel Supply Company, Inc., now in the possession of the defendant, Ray H. Eyman, which personal property includes but is not limited to the following: (describing records pertaining to bank accounts of six of the plaintiffs in two banks in Wichita).” The affidavit for replevin alleged the personal property had an aggregate or actual value of $12,457.75, and was wrongfully detained by defendant. In accordance with G. S. 1949, 60-1007, plaintiffs’ undertaking in replevin was in the sum of $24,915.50. Service of summons was obtained upon defendant on Saturday morning, September 19, 1959, at approximately 11:00 o’clock. The records in question were secured by the sheriff at the same time. Defendant was temporarily impecunious and unable over the week end of September 19-20, to post a redelivery bond in the amount of $24,915.50 within twenty-four hours (G. S. 1949, 60-1007), and was unable to secure a return of the records to his possession. On Monday morning, September 21, 1959, the district court issued its order to the sheriff of Sedgwick County directing him to hold all books and papers obtained from defendant in replevin and then in his hands until the further order of the court. Plaintiffs perfected an appeal from that order, and on April 6, 1960, it was heard on the merits. On May 14, 1960, the order was held to be void and was set aside. (Ablah v. Eyman, 186 Kan. 626, 352 P. 2d 10.) Following reversal, the records were delivered to plaintiffs. Courts may judicially notice earlier proceedings in the same case (In re Estate of Rothrock, 173 Kan. 717, 723, 252 P. 2d 598; Schauf v. Peter Kiewit & Sons Co., 187 Kan. 180, 183, 354 P. 2d 687), and, as a background to defendant’s allegations for actual damages pleaded in the first cause of action, reference is made to two affidavits filed in this court on October 22, and October 30, 1959, by plaintiffs and their presently employed public accountants during the pendency of Ablah v. Eyman, supra. Those affidavits are summarized and quoted as follows: It was essential that plaintiffs have immediate possession of the aforesaid records, books, information, data, and so forth, in time to prevent “an adverse tax determination against these appellants in an amount in excess of $25,000”; further, that on July 23, 1959, plaintiffs received notices of proposed income tax deficiencies in an aggregate amount of $79,673.23 plus estimated interest of $27,885.55; that such notices required the filing of formal protests with the Bureau of Internal Revenue within 30 days; that plaintiffs secured a 60-day extension in which to file said protests, and on October 22, 1959, thirteen separate protests were filed on their behalf; that it was absolutely necessary plaintiffs have the books and records which were the subject of the action prior to a hearing before the Appellate Division of the Bureau of Internal Revenue, which was expected in the very near future; that if plaintiffs were “denied such records a wholly unjustified adjudication of tax liability would be made against them and for which the records contained data constituting a legitimate defense,” and, “that because of the volume and complexity of the records and the limited time prior to the hearing, it would be impossible to reconstruct the records and data which are the subject of this action.” In his third amended answer defendant specifically denied possession of any of the personal property itemized in the petition and affidavit for replevin, “except certain papers, work sheet analyses, schedules, statements, reports, records, correspondence and memo randa prepared or made by the Defendant or received in connection” with his employment by plaintiffs, which were particularly described and identified in Exhibit A attached to his amended answer. (Exhibit A is attached to the opinion as an appendix, and for brevity, items described therein are hereafter referred to as “working papers” or “work sheets.”) Defendant further specifically denied that plaintiffs or anyone acting in their behalf had requested or made demand for delivery of the personal property itemized in the petition and in the possession of the defendant and alleged there was no refusal or failure by him to deliver the same; that the aggregate and actual value of the personalty itemized in the affidavit of replevin was $12,457.75; that said personalty had an actual or aggregate value, or a market value, or a salable value, and that he wrongfully detained any papers or records of plaintiffs or that they had any ownership of, or immediate or superior right of possession to, any personal property in his possession. Further answering, defendant alleged that at all times material, he was a duly practicing public accountant; that he was employed by plaintiff Frank J. Ablah in November, 1955, to make an audit or audits necessary to determine taxable income in connection with an investigation of the Internal Revenue Service for the years 1949-1954 for himself and other named plaintiffs; that he was paid in excess of $12,000 for his services and there was a balance due of $459.50 plus interest; that upon completion of the audit he rendered a final report in writing to plaintiffs with a copy to the Internal Revenue Service reflecting proposed adjustments of taxable income previously reported by plaintiffs in federal income tax returns for the years 1949-1954; that plaintiffs knew he did not have possession of the other personal property itemized in the affidavit of replevin (the original books and records covering several business years prepared and built by defendant) since he delivered the same to them prior to their filing the action; that the working papers prepared or made by him or received in connection with his employment had been in his possession in excess of two years prior to the filing of the action; that in the absence of any written or oral agreement the working papers prepared or made by him or received in connection with his employment were his property; that said working papers were a part of his office records, were personal to him, were the product of his own work, services and efforts, were confidential in nature and subject to his exclusive control and use and were the only basis open to him to substantiate, prove or justify the validity and accuracy of the final report rendered to plaintiffs with a copy to the Internal Revenue Service; that he was the sole owner and only person entitled to the possession or use of the working papers; that he was acting as an independent contractor and in a professional capacity in his employment with plaintiffs; that the working papers were made while he was engaged in his own profession or business; that they contained computations, notations and typed words which belonged to him; that he was not employed to make those working papers, but they were merely a means to an end and were made solely for his own assistance in reaching the end result of adjusting taxable income previously reported and in making a final written report to the plaintiffs; that with the full consent, knowledge and authority of Frank J. Ablah, for himself and the other plaintiffs, he was to effect adjustments to plaintiffs’ taxable income for the years 1949-1954, by reviewing the final report with revenue agents assigned to the audit then being made by the Internal Revenue Service; that the final report of his audit of plaintiffs’ taxable income was submitted to and accepted by the plaintiffs, and that his professional services were terminated. In the first cause of action of the amended cross petition defendant made the allegations of the third amended answer a part thereof and further alleged that plaintiffs improperly filed the summary replevin action on Saturday, September 19, 1959, at 8:23 a. m., and erroneously alleged an aggregate and actual value of $12,457.75 and obtained service of summons upon him, and wrongfully deprived him of the property set forth in Exhibit A at 11:00 o’clock a. m. on the same day, “for the purpose of wrongfully and unjustly depriving the Defendant of the value of the use thereof, which usable value and money savings to the plaintiff, Frank J. Ablah, and those for whom he acted as agent or with authority and who are Real Parties in interest, are as follows: “Cost to reaudit Plaintiffs’ hooks and records for purpose of making a determination of Plaintiffs’ income tax liabilities for the six years, 1949 through 1954, at the reasonable and customary charge of $10.00 per hour for preparation time of 4,000 hours . . $40,000.00 “Time saving to prevent \ . . adverse tax determination . . . in an amount in excess of $25,000.00,’ as set forth in Affidavit filed in The Supreme Court of the State of Kansas .... $25,000.00 “Time saving to prevent additional interest for period of one year preparation time on ‘. income tax deficiencies in an ag gregate amount of $79,673.23 plus estimated interest of $27,-885.55; . . .,’ as set forth in Affidavit filed in The Supreme Court of the State of Kansas and executed by Grant R. Webster, $6,450.00 “Total .......................................$71,450.00” Defendant made all the allegations of the third amended answer and all the allegations of the first cause of action a part of his second cause of action, and further alleged plaintiffs erroneously alleged ownership and immediate right to possession of the working papers described in their petition and affidavit for replevin; that Frank J. Ablah knew at the time he executed the verified pleadings on September 16, 1959, and when they were filed and service of summons was obtained upon defendant on September 19, 1959, and knew at all times subsequent that plaintiffs had no ownership in or immediate right to possession of the working papers and that they had no right to keep possession to the exclusion of defendant; that plaintiffs knew defendant was entitled to possession and use of the papers and that any contrary or insistent possession or use by them was improper and a wrongful invasion and denial of the property rights of the defendant; that defendant was entitled to nominal damages of $5,000 for the deprivation of the right to use and possess the property and to “damages in the amount of $4,000.00 for expenses and time expended in pursuit of possession of the said property.” As previously indicated, the third cause of action was to recover the balance due for professional services in the sum of $459.50. Defendant made all the allegations of the third amended answer and all those of the first and second causes of action a part of the fourth cause of action, and further alleged that plaintiffs fraudulently, maliciously and intentionally filed the replevin action with full knowledge that defendant did not have the personal property alleged in the affidavit for replevin; that the personal property he possessed belonged to and was owned by him; that plaintiffs knew he was the only person entitled to possession and use of the working papers and that their seizure wrongfully deprived him of possession and use, caused him inconvenience and expense and attorney fees in the protection and recovery of the property; that plaintiffs knew the aggregate value of the property itemized in the affidavit for replevin was nil; that said property had no actual value or market or salable value and that by erroneously alleging an aggregate or actual value of $12,457.75 and posting an undertaking in replevin of $24,915.50, they and each of them could fraudulently and maliciously prohibit the defendant, whom they knew to be temporarily impecunious, from posting a redelivery bond pursuant to G. S. 1949, 60-1007, and wrongfully deprive him of possession and use of his property for an extended period; that the combined reputed net worth of plaintiffs was $1,000,000, and that defendant was entitled to punitive and exemplary damages of $55,000. The prayer was that defendant be awarded possession of the property; that plaintiffs be ordered to deliver the same to him, and that he have judgment against plaintiffs for $185,909.50 with interest, and costs. Plaintiffs filed a five-paragraph motion to strike from the third amended answer and cross petition. The first paragraph was directed to that portion of the third paragraph of the first cause of action which reads, “for the purpose of wrongfully and unjustly depriving the defendant of the value of the use thereof,” upon the ground the allegation was a “conclusion, alleges no ultimate fact with respect to damages upon which the defendant can recover against the plaintiffs, and is prejudicial to the plaintiffs.” The second paragraph was directed to the same paragraph of the first cause of action and to that portion which reads, “which usable value and money savings to the plaintiff . . . totaling $71,450.” The motion sought to strike the allegation upon the ground it was a “conclusion, alleges no proper elements of damage upon which the defendant can recover against the plaintiffs, and is prejudicial to the plaintiffs.” Paragraph 4b was directed to the second cause of action relating to recovery by defendant of “alleged expenses and time” in pursuit of the property and sought to strike the allegation upon the ground it was “not a proper recoverable element of damage in favor of the defendant and against the plaintiffs.” The foregoing paragraphs of the motion to strike were sustained, and those portions of the first and second causes of action have been quoted and italicized above to assist the reader to readily observe the allegations which were ordered stricken by the district court. All the other paragraphs of the motion were overruled. No allegations were stricken from the third and fourth causes of action. We turn to the merits of the appeal. At the outset it is observed this record presents an unusual case in replevin. The facts and circumstances alleged, the peculiar subject matter of the action, and the valuation of the usé of the property for damages, all present some degree of novelty and difficulty. Unlilce the replevin of, for instance, an animal, an automobile, or some other similar species of personal property having an actual or market value, no matter when or by what means the defendant regains possession of the property, most, if not all, of its usable value to him is gone and the mechanical process of replevin cannot undue it by decreeing possession of the property in him. Plaintiffs do not contend the order sustaining their motion to strike was not a final order (G. S. 1949, 60-3302, 60-3303), or that its effect was to strip defendant of all allegations for actual or compensatory damages and for damages for expenses and time expended in pursuit of the property. Hence, for the purpose of a decision upon the correctness of the order to strike, well-pleaded allegations of the first and second causes of action, including those stricken, must be accepted as true and every reasonable inference must be indulged in favor of the defendant in determining the questions of law presented as applied to the pleaded and conceded facts. (Smith v. Jones, 145 Kan. 892, 67 P. 2d 506; White v. Thompson, 181 Kan. 485, 312 P. 2d 612; Wendler v. City of Great Bend, 181 Kan. 753, 316 P. 2d 265; King v. King, 185 Kan. 742, 347 P. 2d 381; Rockhill, Administrator v. Tomasic, 186 Kan. 599, 352 P. 2d 444.) Whether allegations of defendant’s cross petition can be supported by evidence is not before us. It is the duty of the pleader to state the premises, the ultimate facts, in simple and concise language, and the duty of courts to declare the conclusions. A general allegation of ownership of specific property may constitute the pleading of an ultimate fact. (Preston v. Shields, 159 Kan. 575, 579, 156 P. 2d 543.) Where, however, as in the instant case, a party sets forth fully and in detail the specific facts upon which he predicates his ownership or title, the additional general allegations that he holds title or that he is the owner of the property, is surplusage and constitutes a conclusion of the pleader which is not admitted on demurrer, or, as here, on a motion to strike. (State, ex rel., v. Ancient Order of United Workmen, 178 Kan. 69, 76, 283 P. 2d 461; Pierce v. Schroeder, 171 Kan. 259, 264, 232 P. 2d 460.) Assuming that, as alleged, defendant was the sole owner and entitled to the exclusive possession of the working papers, a great part of their usable value has been transferred in toto to plaintiffs. On the other hand, if, from the facts alleged, defendant was not the owner and entitled to possession of them, and if plaintiffs were at all times the lawful owners, they would be entitled to possession and at least nominal damages by reason of defendant’s wrongful detention. Hence, necessarily, our first inquiry is directed to the question whether, as a matter of law, defendant was the owner of the working papers under the facts alleged. Generally speaking, working papers are the computations and rough notes that an accountant makes in the practice of his profession. They are not “scratch paper” writings because they are compiled far more carefully. Typically, they are clearly labeled, and the computations made on them are explicitly described. For the most part, they contain only accounting data, but they sometimes contain brief narrative explanations as well. They constitute a record of the audit work performed, both from a qualitative and quantitative standpoint. That is to say, they constitute proof of what records were examined, what confirmations were undertaken, what inquiries were made, and so forth. The extent to which the audit work was planned and supervised may be evident from them, and they are the accountant’s proof of the accuracy of his audit and the fairness of the opinion which he expresses in his reports to his clients. Often they are drafted in pencil instead of pen and ink which in no sense detracts from the careful workmanship ordinarily used by accountants in compiling them. There is a close analogy between the rough notes collected by an attorney and the working papers prepared by an accountant. An attorney collects preliminary rough notes and uses those memoranda as raw material for the preparation of briefs, pleadings, and other legal documents. An accountant, on the other hand, places his preliminary data on working papers and then uses them as the basis for financial statements, audit certificates, and other accounting reports to his clients. Working papers, then, accomplish .the same purpose for accountants that rough notes perform for attorneys. (Schugerman’s Accounting for Lawyers, 1952; Shannon’s Legal Accounting, 1951; Saul Levy’s Accountants’ Legal Responsibility, 1954.) Authors of legal encyclopedias classify working papers as literary property, and the law dealing with that property has been held to be applicable to their ownership and custody. (34 Am. Jur., Literary Property and Copyright, § 9, p. 407; 18 C. J. S., Copyright and Literary Property, § 16b.) See, generally, Fourth Decennial Digest, Vol. 20, Literary Property, p. 1474, and Ipswich Mills v. Dillon, 260 Mass. 453, 157 N. E. 604, 53 A. L. R. 792. It is generally held that the ownership of working papers of an accountant is determined by the contractual relation under which the professional services are rendered. An accountant may prepare working papers in the capacity of an employee, or an independent contractor. If he is an employee, the ownership vests in the employer, but if he is an independent contractor, ownership vests in the accountant. (Shannon’s Legal Accounting, 1951, p. 325.) See, also, CPA Handbook, Ch. 15, p. 10 (American Institute of Accountants, 1956 Ed.). In 34 Am. Jur., Literary Property and Copyright, § 9, p. 407, the rule is stated: “. . . When an independent contractor, such as an accountant, is employed to perform work such as preparing an income tax return, the employer has no property right in the papers made and prepared by the independent contractor solely for his own assistance, even though these papers may embody information which is confidential and important to the employer.” In Ipswich Mills v. Dillon, supra, it was held that work sheets are working papers on which original compilations, computations and analyses are made by an accountant, which later are gathered together in a summary form and the figures rendered in a schedule, exhibit, report or return upon which the accountant is working. It was also held that where accountants are employed as independent contractors to make an audit and prepare a tax return, working papers made by them while engaged in their own business were their property and a surrender of them to the employer could not be compelled. In the opinion it was said: “The work sheets, as defined by the trial judge, were the defendants’ property. They were made by them while engaged in their own business. The paper on which the computations were made belonged to them. They were not employed to make these sheets. The sheets were merely the means by which the work for which the defendants were employed might be accomplished. The title to the work sheets remained in the defendants after the computations were made. In the absence of an agreement that these sheets were to belong to the plaintiff, or were to be held for it, they were owned by the defendants. . . .” (p. 457.) As tending to bear on this point see Application of House, 144 F. Supp. 95; United States v. Boccuto, 175 F. Supp. 886, and Sale v. United States, 228 F. 2d 682. Allegations of the defendant and inferences most favorable to them are to the effect that he was a public accountant and was employed by plaintiffs in November of 1955 as an independent contractor to prepare a set of books and records from original source documents of plaintiffs’ businesses for the years 1949-1954, and to audit those books and records to determine taxable income in connection with an Internal Revenue Service investigation of plaintiffs for those years. In the course of his professional services, defendant developed certain working papers described in Exhibit A. Without making a detailed summary of the items described, it may be said they were working papers or sheets prepared or received by defendant in connection with, or incident to completing the books and records of plaintiffs’ businesses, and in making the audit. Upon completion of his work, he rendered a final written report to plaintiffs which they accepted, proposing adjustments to each plaintiffs’ taxable income previously reported on income tax returns filed by them for the years in question; forwarded a copy to the Internal Revenue Service, and delivered the original books, records, and all original source documents to the plaintiffs, retaining, however, his working papers here involved. For his. services, defendant was paid in excess of $12,000, and his employment was terminated. Accepting the well-pleaded facts as true, which we are required to do under the rule heretofore set forth, we are of the opinion the property involved in this action was working papers of defendant, developed and prepared in the course of his professional business pursuant to his employment by plaintiffs as an independent contractor, and that title and ownership thereof was vested in him when the action was commenced. (34 Am. Jur., Literary Property and Copyright, § 9, p. 407; Ipswich Mills v. Dillon, supra; Shannon’s Legal Accounting, 1951, p. 325.) Hence, plaintiffs had no immediate or exclusive right to possession of the property and defendant was wrongfully deprived of its possession and use when taken from him on September 19, 1959. Defendant was entitled to plead his claimed right for compensation by cross petition (Brandtjen & Kluge, Inc., v. Lucas, 153 Kan. 138, 143, 109 P. 2d 197), and we are brought to the question of the measure of his recovery and the remedy and proof available to him, to determine whether the district court erred in sustaining either paragraph 1 or 2, or both, of the motion to strike. Again, our approach to this question is in accordance with the foregoing rule that well-pleaded allegations of the first and second causes of action, including those stricken, are accepted as true and every reasonable inference is indulged in favor of the defendant. While defendant was paid in excess of $12,000 for his services, that sum in no wise enters into the question of the amount of recovery resulting from the unlawful seizure and detention of his working papers. Actions in replevin restore to the owner the possession of property of which he was deprived (G. S. 1949, 60-1010), and although they are restitutionary in character, they are classified as tort actions. The rules for determining the measure of recovery in tort are built upon the basis of full compensation for the injury and damage sustained. (Restatement of the Law, Torts, § 901, pp. 536, 537.) When a right to a remedy exists, the injured party is entitled to full indemnity for all the damage to which the wrongdoer’s responsibility extends. In determining the measure of compensation, the law of torts ordinarily does not take into account, as do the rules based upon unjust enrichment, the benefits received by the defendant. (Restatement of the Law, Torts, § 901, p. 538.) It is well settled that where property has a value on account of the use to which it may be .put, as distinguished from its value for sale or consumption, the successful party in a replevin action is entitled to recover the value of such use during the time the property was wrongfully seized and detained. A few of our many cases on the point are: Bell v. Campbell, 17 Kan. 211, Syl. ¶ 1; Kennett v. Fickel, 41 Kan. 211, Syl. ¶ 5, 21 P. 93; Werner v. Graley, 54 Kan. 383, Syl. ¶ 1, 38 P. 482; Bank v. Showers, 65 Kan. 431, Syl. ¶ 4, 70 P. 332; Sansone v. Studebaker Corporation, 106 Kan. 279, Syl. ¶ 3, p. 282, 187 P. 673, and Krueger v. Schlemeyer, 145 Kan. 469, Syl. ¶ 4, 66 P. 2d 395. A plaintiff who without right or title seizes the property of another by a writ of replevin is as much a wrongdoer as a defendant in an action for conversion. In Sansone v. Studebaker Corporation, supra, it was said there can be no difference in the measure of recovery where property is wrongfully taken in an action in replevin and where property is wrongfully taken without a writ of replevin. The value of the use of the property taken can be recovered in either kind of action. Generally speaking, the right of property in a thing is the legal right to exercise dominion and control over it. As we have seen, the working papers were such that defendant had a property right in them, and that they had only a limited or special use is self-evident. They related only to plaintiffs’ businesses, and income tax returns for the years the Internal Revenue Service was investigating plaintiffs. It was alleged they had no actual or market or salable value, but it was not alleged they had no usable value. Their true value lay in their intellectual content, measurable only in their use by either plaintiffs or defendant. Once plaintiffs gained possession of the working papers, they could, and we are advised they did, copy them and use them in their tax problems. So copied and used, they became markedly more valuable to plaintiffs and their value to defendant was practically gone. A benefit is conferred where the party using the property is saved expense or loss which might otherwise be incurred. (Restatement of the Law, Restitutions, § 1 [b], p. 12; Olwell v. Nye & Nissen Co., 26 Wn. 2d 282, 173 P. 2d 652, 169 A. L. R. 139.) The word “benefit” denotes any form of advantage. The very essence of the nature of property is the right to its exclusive use. Without it, no beneficial right remains. Plaintiffs cannot be heard to say that, because defendant’s papers had been in his files for over two years and he ostensibly had no present use for them, their wrongful invasion of his property right to exclusive use is not a loss compensable in law for which he can recover the value of their use. To hold otherwise would be subversive of all property rights since plaintiffs’ use was wrongful and without claim of right. (Olwell v. Nye & Nissen Co., supra.) The loss of that property right is the basis of defendant’s cross petition, and that part of the order sustaining the first paragraph of the motion to strike was erroneous. It had the effect of striking out defendant’s right to recover the value of the use of his working papers and precluded him from offering evidence of the value of that use, that is, the exchange value in money to plaintiffs, taking into consideration the purpose for which they were sought and the urgency of that purpose; the use to which they were put and the extent of that use, and the benefits derived therefrom. See Liggett & Myers Tobacco Co., Inc. v. Meyer, 101 Ind. App. 420, 194 N. E. 206, and Ryan & Associates v. Century Brew. Ass’n, 185 Wash. 600, 55 P. 2d 1053, 104 A. L. R. 1353. The allegation, “for the purpose of wrongfully and unjustly depriving the defendant of the value of the use thereof,” was improperly stricken and it is hereby restored to the first cause of action. Is defendant’s right of action and measure of recovery confined to damages resulting from an invasion of his right, or may he re cover the value of the use of his property based upon benefits plaintiffs received from their use of it? We think he had an election of remedies. Generally speaking, torts may be divided into two classes: (1) Where the tort-feasor receives a benefit from his wrongful act, and (2) where the tort-feasor derives no financial gain from his wrongful conduct. (Anno. 169 A. L. R. 148.) With respect to the first class of torts, a tort-feasor is ordinarily liable to the other, at the latter’s election, either for the damage done to the other’s interests or for the value of the benefit received through the commission of the tort. (Restatement of the Law, Torts, § 903, Comment b, p. 540.) In Restatement of the Law, Restitution, Ch. 7, pp. 523, 524, and 525, the rule is stated: “Certain actions, however, are classified as tort actions, although they are restitutionary in that they restore the plaintiff to his former position by taking from the defendant what he had wrongfully acquired, or its value. This is true of actions of replevin and ejectment, both of which restore to the possession of the owner property of which he was deprived, or under modern statutes in the case of replevin, its value. . . . “However, in all of these cases a tj'pical quasi-contractual situation exists and even though the tort actions normally produce results which are similar to those produced by the quasi-contractual actions, the fact that the defendant was a wrongdoer does not limit the injured party to a tort action. . . . “The granting of relief by way of general assumpsit in such situations originated in the fiction of an implied agreement by the defendant to compensate the plaintiff for the benefit received. . . . With increasing recognition of a restitutional basis for the action, however, relief of this nature has been given in a variety of situations in accordance with the general principle stated in § 8, to the effect that a person who obtains a benefit from a tort committed by him at the expense of another is under a duty of compensating the other for the value of the benefit thus received. To require the wrongdoer to pay the value of what he has improperly received is ordinarily demanded by justice. . . .” See, also, Restatement of the Law, Torts (Damages), § 903, Comment b, p. 540. This court has recognized the foregoing rule and has consistently held that whenever one person commits a wrong or tort against the estate of another, with the intention of benefiting his own estate, as is here alleged, the law will, at the election of the injured party, imply or presume a contract on the part of the wrongdoer to pay. the party injured the full value of all benefits resulting to the wrongdoer. (Stewart v. Balderston, 10 Kan. 131; Tightmeyer v. Mongold, 20 Kan. 90, 91; Fanson v. Linsley, 20 Kan. 235, 239; Smith v. McCarthy, 39 Kan. 308, 311, 18 P. 204; Lipscomb v. Bank, 66 Kan. 243, 246, 71 P. 583; Hewey v. Fonts, 91 Kan. 680, 683, 139 P. 407; Flick v. Murdock, 115 Kan. 862, 865, 225 P. 119; Scherger v. Union National Bank, 138 Kan. 239, 246, 25 P. 2d 588.) The rule is known as the resulting benefit rule (Challis v. Hartloff, 136 Kan. 823, 826, 18 P. 2d 199), and it is based, at least in part, upon the principle that no one should be allowed to enrich himself unjustly at the expense of another; also, upon the premise that where property has been wrongfully detained from another, the law imposes a duty to return it and to pay the value of the use, which may be treated as the result of an implied contract. (Orozem v. McNeill, 103 Kan. 429, 431, 175 P. 633; rehearing denied 103 Kan. 694, 176 P. 106.) The duty to pay is based upon the principle announced by Lord Mansfield in Moses v. Macferian, 2 Burr. 1005, 1012, that whenever, according to the principles of natural justice and equity a wrongdoer ought to pay, the law imposes a duty to pay (Tightmeyer v. Mongold, supra; Scherger v. Union National Bank, supra; Black v. City of Lawrence, 113 Kan. 518, 521, 215 P. 297; Witmer v. Estate of Brosius, 184 Kan. 273, 277, 336 P. 2d 455), and the value of the use of property may be recovered on the basis of quasi-contractual obligation. (Fanson v. Linsley, supra, pp. 238, 239; 1 Am. Jur., Actions, § 52, p. 444; 12 Am. Jur., Contracts, § 6, p. 503; Restatement of the Law, Restitution, § 128, p. 533, and comment i; also, notes on Restatement of Restitution, § 128, p. 190.) A person upon whom a tort has been committed and who brings an action for the benefits received by the tort-feasor is sometimes said to "waive the tort.” The election to bring an action of assumpsit, that is, to sue on the implied contract for benefits received by the wrongdoer is not, however, a waiver of a tort but is the choice of one of two alternative remedies. In many cases the action of assumpsit is based primarily upon the fact that a tort was committed. In Orozem v. McNeill, supra, it was said: “. . . It is often said that the person aggrieved may waive the tort and sue upon the implied contract, but this expression is open to some misapprehension. What he waives is the right to seek relief through a procedure peculiar to actions founded on tort. Having the privilege of pursuing either remedy, he elects to declare upon an implied contract instead of upon the tort. He does not waive the wrong or fraud that has been practiced upon him by which the defendant has obtained his money or property, but he alleges in effect that because it was so unlawfully obtained from him a promise to restore it is implied. “ ‘The tort is, however, waived only in the sense that a party having a right to sue in tort or assumpsit will not, after he has elected to sue in assumpsit, be allowed to sue in tort. By such an election that which was before the election tortious does not cease to be so. In fact, when the assumpsit is brought, it is only by showing that the defendant did a tortious act that the plaintiff is able to recover. There being no contract between the parties, unless the defendant is guilty of some wrong the plaintiff can establish no cause of action against him.’ (Keener on Quasi-contracts, 159.) “According to this view, the circumstance that the plaintiff is required to prove the fraud or other tort in order to recover does not prevent the maintenance of his action as one upon an implied contract.” (l. c. 431, 432.) See, also, Woodward, The Law of Quasi-Contracts, § 272, (2), p. 439, and Professor Corbin’s Articles, “Waiver of Tort and Suit on Assumpsit,” 19 Yale Law Journal, p. 221, and “Quasi-Contractual Obligations,” 21 Yale Law Journal, p. 533. A “cause of action” is the wrong done, not the measure of compensation or character of the relief sought. (Foster v. Humburg, 180 Kan. 64, 67, 299 P. 2d 46.) When the pleader has stated the facts of his case, he will be entitled to recover thereon just what such facts authorize. (Crabb v. Swindler, Administratrix, 184 Kan. 501, 504, 337 P. 2d 986, and cases cited; Vakas, Administratrix v. Collins, 185 Kan. 103, 107, 340 P. 2d 99; Wycoff v. Winona Feed & Grain Co., 187 Kan. 98, 103, 353 P. 2d 979.) Whether a cause of action is based on implied contract or tort is determined by the pleading (Smith v. McCarthy, 39 Kan. 308, 18 P. 204; Dougherty v. Norlin, 147 Kan. 565, 569, 78 P. 2d 65, and cases cited; Crabb v. Swindler, Administratrix, supra), but the petition need not state whether the action is based on implied contract or tort (Akin v. Davis, 11 Kan. 580; Cockrell v. Henderson, 81 Kan. 335, 337, 105 P. 443) and where doubt exists whether the action is based on tort or implied contract, words appropriate to a tort action will be disregarded and the petition will be interpreted as counting in contract. (State Highway Comm. v. Puskarich, 148 Kan. 385, 391, 83 P. 2d 131; Crabb v. Swindler, Administratrix, supra, p. 507; Kipp v. Carlson, 148 Kan. 657, 661, 84 P. 2d 899; Dougherty v. Norlin, supra.) When the allegations of the first cause of action are given all favorable inferences to which they are entitled, we think they allege a wrongful appropriation by plaintiffs of defendant’s property right under circumstances as would raise an obligation to pay for the value of its use. The defendant should be given whatever relief the facts entitle him to, even if he has misconceived their legal effect. (Akin v. Davis, supra; Chase v. Railway Co., 70 Kan. 546, 79 P. 153; Tire Co. v. Kirk, 102 Kan. 418, 420, 170 P. 811.) Ry a liberal inter pretation of the allegations, the clear import of the cause of action is one to recover on quasi contract or unjust enrichment the value of benefits plaintiffs received by their wrongful seizure and detention of defendant’s property. Such a construction is obviously in the interest of substantial justice. As previously indicated, the working papers had a value only in their use by either plaintiffs or defendant. Manifestly, that value must be determined by its value to the user, and the resulting benefit rule is applicable as a measure of recovery. A judgment in favor of the defendant on such basis would be a positive gain to him, yet it imposes no penalty upon plaintiffs, it would merely compel them to pay for the use of that which they had no right to appropriate. Although there are no allegations of the value of the use of the property in the first cause of action as here construed, they may be regarded as being covered by the statement that defendant had been damaged by plaintiffs’ conduct in the sum of $135,909.50 (Tire Co. v. Kirk, supra), notwithstanding such amount includes the sum of $64,459.50, the total of damages alleged in the other causes of action. See, also, Sutherland, Damages, § 415; Sedgwick, Damages, 9th ed. § 1260. Turning to that part of the order sustaining the second paragraph of the motion to strike, we are of the opinion the district court did not err in striking out the three items of damage in the amounts of $40,000, $25,000 and $6,450, respectively. Conclusions heretofore announced would permit defendant to offer evidence of the use and the extent of the use to which plaintiffs put the working papers to establish the benefits, if any, plaintiffs received as a result of such use. However, the three specific items of damage and corresponding allegations, standing alone, were not proper items upon which the district court might instruct the jury to assess damages against plaintiffs in the event it found for defendant. Two of the items were based upon statements made by plaintiffs of their need of the working papers, and the other item related to defendant’s estimate of cost to re-audit plaintiffs’ books in order to secure data and information reflected in his working papers. At most, evidence of those items would be admissible only to show the benefits, if any, plaintiffs received, to be considered by the jury together with all other evidence under proper instructions by the district court to determine the amount of restitution necessary to indemnify defendant for the loss alleged to have been sustained. Defendant contends it was error to sustain paragraph 4 b of the motion which struck out allegations in the second cause of action to recover “expenses and time” expended in pursuit of the working papers. He concedes in his brief such allegations were made only to recover attorney fees. We are of the opinion the district court did not err in sustaining paragraph 4 b of the motion. The general rule is that attorney fees and expenses of litigation, other than ordinary court costs, are not recoverable as an item of compensatory damage in the same or subsequent action and are not chargeable as costs against the defeated party, in the absence of a clear and specific statute authorizing such recovery. (A. T. & S. F. Rld. Co. v. Stewart, 55 Kan. 667, 672, 41 P. 961; Myers v. Strauss, 171 Kan. 91, 229 P. 2d 774; Vonachen v. Pratt Glass Co., 172 Kan. 545, 241 P. 2d 775.) The question whether defendant can recover expenses in pursuit of the property and for attorney fees based upon allegations for punitive damages in the fourth cause of action is not before us. Other points have been advanced, but in view of conclusions heretofore announced it is unnecessary to discuss and decide them. As here modified the judgment of the district court is affirmed. APPENDIX “Exhibit A. “1. Abstracts prepared by Defendant of Plaintiffs’ Federal Income Tax Returns for the years 1949 to 1954, inclusive. “2. Working papers containing analysis and memoranda developed and prepared by Defendant of cash receipts and disbursements for Plaintiff, Frank J. Ablah, for the years 1949 to 1954, inclusive. “3. Working papers containing analysis and memoranda developed and prepared by Defendant of personal loans made by Plaintiff, Frank J. Ablah, for the years 1949 to 1954, inclusive. “4. Working papers containing trial balances of the general ledger, analysis of accounts in the general ledger and memoranda developed and prepared by Defendant of Plaintiff, Ablah Ruilding Company, a partnership, for the years 1949 to 1954, inclusive (Ablah Ruilding Company sometimes captioned as Ablah Hotel Supply Company). “5. Detail of real estate lots for Plaintiff, Ablah Hotel Supply Company, a partnership, for the years 1949 to 1954, inclusive, furnished the Defendant by this Plaintiff. “6. Working papers containing trial balances of the general ledger, analysis of accounts in the general ledger and memoranda developed and prepared by Defendant of Plaintiff, Ablah Hotel Supply Company, Inc., for the years 1949 to 1954, inclusive. “7. Working papers containing analysis of transactions and memoranda developed and prepared by Defendant for Plaintiff, Ablah Manufacturing Company, a partnership, for the years 1949 to 1954, inclusive. “8. Working papers containing analysis of transactions and memoranda developed and prepared by Defendant for Plaintiff, Ablah Meadows, for the years 1951 to 1954, inclusive. “9. Work sheets and working papers developed and prepared by Defendant containing data and memoranda and allocation of proposed adjustments to each Plaintiff’s taxable income reported on income tax returns previously filed by them for the years 1949 to 1954, inclusive. “10. Defendant’s copy of Final Report submitted to both Plaintiffs and the Internal Revenue Service, Kansas District, and prepared by Defendant. “11. Miscellaneous correspondence and memoranda developed and prepared by Defendant or received in connection with Defendant’s audit.”	[ -16, 108, -8, 46, 56, -32, 42, -102, 106, -127, -89, 83, -87, -62, 24, 109, 115, 109, -44, 122, -50, -89, 87, 42, -42, -77, -15, 69, -67, 76, -28, 86, 76, 48, -62, 21, 71, -126, -57, 20, 14, 12, -86, -59, -7, 64, 52, -69, -92, 15, 113, -51, -77, 44, 28, -57, 9, 45, 91, -71, 81, -15, -69, -115, 89, 23, -127, 55, -68, 67, -40, 43, -100, 49, -128, -24, 51, -90, 6, -12, 43, -88, 9, 98, 98, 18, -59, -25, -72, -120, 47, 34, 13, 39, 19, 88, 65, 97, -68, -99, 124, 16, 5, 126, -8, -123, 25, 44, 15, -54, -42, -77, -17, 126, -118, 11, -49, -125, 16, 112, -51, 4, 92, 103, 113, -101, -34, -44 ]
Per Curiam: This case arises on the Kansas Department of Revenues petition for review from our Court of Appeals’ decision affirming the Board of Tax Appeals (The Board of Tax Appeals is now the Court of Tax Appeals. See L. 2008 ch. 109, sec. 2) ruling in favor of taxpayers Stephen and Loretta Lemons. We granted review to address what was then an issue of first impression — -whether K.S.A. 2008 Supp. 79-3230(g) tolled K.S.A. 2008 Supp. 79-3230(f)’s 180-day statute of limitations for seeking a refund as a result of an income adjustment. The Department contended that the tolling provision applied only when new income information would prompt an assessment, not when it would prompt a refund. Since we granted review, the legislature amended subsections (f) and (g) of K.S.A. 2008 Supp. 79-3230 to conform the statute to the Department’s reading of it. See L. 2009, ch. 142, sec. 5. Thus this case has become one of last, as well as first, impression. Our interpretation and construction of statutory language is governed by an unlimited standard of review. See State v. Henning, 289 Kan. 136, Syl. ¶ 1, 209 P.3d 711 (2009). No significant deference is due to an agency’s interpretation or construction of a statute. See Higgins v. Abilene Machine, Inc., 288 Kan. 359, 361, 204 P.3d 1156 (2009); see also Denning v. Kansas Public Employees Retirement System, 285 Kan. 1045, 1048, 180 P.3d 564 (2008) (agency interpretation not conclusive); Graham v. Dokter Trucking Group, 284 Kan. 547, 554, 161 P.3d 695 (2007) (same). Regardless, of whether we interpret the plain language of K.S.A. 2008 Supp. 79-3230(g) in isolation or. we construe the entire text of K.S.A. 2008 Supp. 79-3230 by using legislative history, statutory canons, background considerations, and our previous decisions as guides, we arrive at the same place: The Board of Tax Appeals and the Court of Appeals were correct in allowing these taxpayers to obtain a refund, even though they did not seek it until well after 180 days had passed after their 1994 income adjustment. Until subsections (f) and (g) of K.S.A. 2008 Supp. 79-3230 were amended this year, the tolling provision was not limited in application to those situations in which an income adjustment would enable the Department to assess tax. It also applied to situations in which an income adjustment would prompt a taxpayer to seek a refund. Affirmed.	[ -112, -56, -43, 124, 74, -64, 35, -118, 81, -67, 39, 83, -89, -38, -124, 123, -9, 61, 85, 98, -57, -73, 103, -128, 118, -69, -47, -36, -7, 95, -26, 94, 12, -80, -54, -11, 102, -61, 85, -36, -82, 6, 8, -51, -7, -128, 52, 105, 114, 75, -31, -52, -13, 56, 26, -61, 8, 44, 73, 47, 68, -16, -86, 5, 126, 5, 33, 5, -4, 79, 88, 46, -100, 56, 0, -24, 123, 54, -46, 53, 11, -71, 9, 110, 98, 33, 5, -19, -68, -72, 14, 82, -83, -25, -44, 89, 107, 45, -90, 29, 116, 54, 71, 126, -26, 4, -97, -20, -107, -114, -112, -77, 31, 100, -118, 75, -1, -125, -110, 97, -50, -30, 92, -57, 50, -109, -122, -108 ]
The opinion of the court was delivered by Prager, C.J.: This is an action brought by a former county highway employee against the Board of County Commissioners of Clay County to recover damages for wrongful termination of employment. The trial court granted defendant’s motion for summary judgment on plaintiff s tort claims. The plaintiff employee, John Greenlee, appealed. The facts in the case are essentially undisputed and are as follows: The plaintiff, John Greenlee, worked for the Clay County Highway Department from July 31, 1978, until January 25, 1985. He was terminated involuntarily on the latter date, pursuant to a letter from the Clay County Highway Administrator which stated in part: “This is due to the lack of funds this coming year. We won’t be getting any revenue sharing money which was $109,000 last year. We are also $180,000 in the hole so these measures are necessary.” Plaintiff then filed this action for damages, asserting multiple causes of action. His first claim was for breach of contract, which was dismissed by the court below after a partial trial, and that claim is not involved in this appeal. His other causes of action were in tort and were based upon three theories: (1) For reckless or intentional violation of the cash-basis and budget laws resulting in loss of his job; (2) for willful violation of the public policy of this state as incorporated in the cash-basis and budget laws; and (3) for breach of an implied covenant of good faith and fair dealing between employer and employee. In his amended petition, plaintiff alleged that the board of commissioners spent $175,000 more than was available in the road and bridge fund during 1984 and spent $248,000 more than was budgeted for that fund during 1984. He further alleged that the defendant knowingly and negligently failed to control expenditures on a day-to-day basis as required by the cash-basis and budget laws, that he was terminated as a result, and suffered damages as the direct and proximate' result of defendant’s wrongful acts. The defendant board admitted it was bound by the cash-basis and budget laws and that the county was $175,000 short in the funds of the highway department. Prior to trial the trial court granted summary judgment in favor of defendant on all of plaintiffs tort claims. The trial court held that the plaintiff had no personal cause of action against defendant for violation of the cash-basis or budget laws and that the uncontroverted facts showed there was no proximate causal relationship between plaintiffs discharge and defendant’s violation of those laws. The trial court also held that the law of Kansas does not provide a cause of action for breach of a covenant of good faith and fair dealing in an employment-at-will relationship in the public sector. Plaintiff filed a timely appeal to the appellate courts. The first issue which we must determine on the appeal is whether plaintiff, as a former county employee, has a personal cause of action in tort against the defendant board of county commissioners because the commissioners violated the cash-basis law and the budget law and, as a result, plaintiff was terminated as a county employee. The issue presented requires us to consider the question of when a personal right of action arises as a result of a breach of a statutory duty. Generally, the test of whether one injured by the violation of a statute may recover damages from the wrongdoer is whether the legislature intended to give such a right. While, in some cases, statutes expressly impose personal liability on persons or entities for violation of the provisions thereof, or for failure to perform specified duties, the absence of such express provisions does not necessarily negate a legislative intent that the statute shall affect private rights. The legislative intent to grant or withhold a private cause of action for a violation of a statute, or the failure to perform a statutory duty, is determined primarily from the form or language of the statute. The nature of the evil sought to be remedied and the purpose the statute was intended to accomplish may also be taken into consideration. The generally recognized rule is that a statute which does not purport to establish a civil liability but merely makes provision to secure the safety or welfare of the public as an entity is not subject to construction establishing a civil liability. The question whether a liability arising from the breach of a duty prescribed by statute accrues for the benefit of an individual specially injured thereby, or whether such liability is exclusively of a public character, depends upon the nature of the duty imposed and the benefits to be derived from its performance, and the relevancy of the rule laid down by the statute to private rights. 73 Am. Jur. 2d, Statutes §§ 431 and 432, pp. 529-30. As to statutes pertaining to public officers, the failure of a public officer to comply with the laws governing and regulating his or her powers or duties, besides giving rise to possible ouster or liability in the criminal courts, may subject such officer to a civil action for damages. If a duty which the official authority imposes upon an officer is a duty owed to the public, a failure to perform it or an erroneous performance is regarded as an injury to the public and not as one to the individual. It is to be redressed in some form of public prosecution and not by a private person who conceives himself specially injured. In other words, official misconduct can constitute an individual wrong only if the duty is owed to the party seeking redress. 63A Am. Jur. 2d, Public Officers and Employees § 371, pp. 940-41, and the cases cited thereunder. The United States Supreme Court in Cort v. Ash, 422 U.S. 66, 78, 45 L. Ed. 2d 26, 95 S. Ct. 2080 (1975), adopted an approach to be used by the federal courts in determining whether a private cause of action should be implied from a federal statute. The Court suggested four relevant factors to be considered: “First, is the plaintiff‘one of the class for whose especial benefit the statute was enacted,’ Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 39 [, 60 L. Ed. 874, 36 S. Ct. 482] (1916) (emphasis supplied) — that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? See, e.g., National Railroad Passenger Corp. v. National Assn. of Railroad Passengers, 414 U.S. 453, 458, 460 [, 38 L. Ed. 2d 646, 94 S. Ct. 690] (1974) (Amtrak). Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? See, e. g., Amtrak, supra; Securities Investor Protection Corp. v. Barbour, 421 U.S. 412, 423 [, 44 L. Ed. 2d 263, 95 S. Ct. 1733] (1975); Calhoon v. Harvey, 379 U.S. 134 [, 13 L. Ed. 2d 190, 85 S. Ct. 292] (1964). And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law? See Wheeldin v. Wheeler, 373 U.S. 647, 652 [, 10 L. Ed. 2d 605, 83 S. Ct. 1441] (1963); cf. J. I. Case Co. v. Borak, 377 U.S. 426, 434 [, 12 L. Ed. 2d 423, 84 S. Ct. 1555] (1964); Bivens v. Six Unknown Federal Narcotics Agents, 403 U. S. 388, 394-395 [, 29 L. Ed. 2d 619, 91 S. Ct. 1999] (1971); id., at 400 (Harlan, J., concurring in judgment).” The federal courts in Kansas have followed the approach suggested in Cort v. Ash. See Gray v. City of Kansas City, Kan., 603 F. Supp. 872 (D. Kan. 1985); Davis v. Modine Mfg. Co., 526 F. Supp. 943 (D. Kan. 1981); Brown v. American Home Products Corp., 520 F. Supp. 1120 (D. Kan. 1981); Young v. Harder, 361 F. Supp. 64 (D. Kan. 1973). The Kansas decisions have also used a similar analysis in determining whether the violation of a statute creates a cause of action in favor of an individual. In Harrod v. Latham, 77 Kan. 466, 470-71, 95 Pac. 11 (1908), this court had to determine whether a violation of a statute regulating insurance companies provided a private cause of action for one specifically injured by violation thereof. This court stated: “ ‘Two apparently inconsistent rules have been enunciated by the courts in deciding whether damage caused to an individual by the violation of a penal statute creating a new right or duty constitutes a civil cause of action in his favor, or whether the penal cause of action is exclusive. On the one hand it has been held that, as a general rule, the wrong-doer is liable in damages to a party injured by the violation of the statutory duty, notwithstanding he may be subject to the penalty for the public wrong; on the other, that the offense against the state is the only cause of action, and the penal suit in expiation thereof an exclusive remedy. By the better authoritij the true test for determining whether or not such penal statutes confer a cause of action for private injuries resulting from the breach seems to be whether the intention of the law is to confer a right upon individuals in addition to creating a new public offense.’ (1 Cyc. 679.) “The intention of this law is obvious; it is to protect our citizens who may become policy-holders. (Morton v. Hart Bros., 88 Tenn. 427, 12 S. W. 1026.) The benefits sought are not altogether to vindicate the sovereignty of the state, but to secure safe insurance for our citizens. When the protection is for the benefit of a class, or individuals of a class, it is held that an individual right of action accrues to the party injured. (Taylor v. Lake Shore & Mich. S. Ry., 45 Mich. 74, 7 N. W. 728, 40 Am. Rep. 457).” (Emphasis supplied.) See also Shelden v. Wichita Railroad and Light Co., 125 Kan. 476, 264 Pac. 732 (1928) (in order for violation of a statute to constitute actionable negligence, the injury complained of must be the sort the legislation was intended to guard against); Parman v. Lemmon, 119 Kan. 323, 325, 244 Pac. 227 (1925) (in order for the violation of a criminal statute to constitute actionable negligence, the injury complained of must be of the sort the legislation was intended to prevent); Denton v. Railway Co., 90 Kan. 51, 133 Pac. 558 (1913) (when a statute creates a duty with the object of preventing a mischief of a particular kind, a person who, by reason of another’s neglect of the statutory duty, suffers a loss of a different kind is not entitled to maintain an action in respect to such a loss). Likewise, this court has denied recovery on an individual’s action against a law enforcement officer, stating the duty of a law enforcement officer to preserve the peace is owed to the public at large and not to a particular individual. See Griffin v. Rogers, 232 Kan. 168, 175, 653 P.2d 463 (1982), which discusses the immunity of a sheriff for failing to maintain a weather warning system and failing to transmit a severe weather forecast to a showboat which was struck by high winds and capsized on Lake Pomona; and Hendrix v. City of Topeka, 231 Kan. 113, 122-23, 643 P.2d 129 (1982), which contains a good discussion of when a public duty becomes narrowed to a special duty owed to an individual. As noted heretofore, the question presented to the court on this appeal is whether a violation of the Kansas cash-basis law and the budget law creates a private cause of action in tort in favor of an individual. In Shouse v. Cherokee County Comm’rs, 151 Kan. 458, 465, 99 P.2d 779 (1940), it was stated that the purpose of the cash-basis and budget laws is to prevent a deficit in the funds of a municipality at the end of the fiscal year. To effectuate that purpose, the budget is to be carefully made and the estimate of expenditures therein specified is to be faithfully observed. K.S.A. 10-1102 declares that the purpose of the cash-basis law is to provide for the funding and payment of all legal debts and obligations and for the future conduct of the financial affairs of such municipality upon a cash basis. The budget law, K.S.A. 79-2935, makes it unlawful for the governing body of any taxing subdivision or municipality in any budget year to create an indebtedness in any manner or in any fund after the total indebtedness created against such fund shall equal the total amount of the adopted budget of expenditures for such fund for that budget year. Any indebtedness incurred by the governing body or any officer or officers of such taxing subdivision or municipality in excess of said amount shall be void as against such taxing subdivision or municipality. We are convinced from our reading of the cash-basis law (K.S.A. 10-1101 et seq.) and the budget law (K.S.A. 79-2935) that the intent of the legislature was not to provide county employees job security but rather was to protect the public from the consequences of financial overspending and deficits. The statutes are clearly for the benefit of the public at large and not for the benefit of a special class. The legislature has specifically provided remedies for violations of those statutes, including K.S.A. 19-2609 (removal of county officers); K.S.A. 19-233 (a criminal misdemeanor penalty); K.S.A. 79-2936 (removal from office); and K.S.A. 60-1205 and K.S.A. 60-1206 (forfeiture and ouster proceedings). It would appear that the legislature has thoroughly addressed the legislative remedies for violation of the cash-basis law and the budget law, and that the failure to provide a private cause of action for an individual citizen was intentional. We also note K.S.A. 10-1119, which voids any contract entered into between the governing body of a municipality and another person which violates the provisions of the cash-basis law. In Patterson v. Montgomery County Comm’rs, 145 Kan. 559, 66 P.2d 400 (1937), a schoolteacher taught school for eight months at $110 per month. The school funds were exhausted after six months. Recause the teacher taught two additional months for which she was not paid, she sued the school district and recovered a judgment for $220, interest, and costs. On appeal, this court relied on K.S.A. 10-1119, holding that the school district was bound to live within the amount of money it had, and, further, that the contract with the teacher violated provisions of the cash-basis law and was void. Considering the factual circumstances of the case now before us, it is undisputed that the county highway indebtedness had already exceeded the available funds, and to provide a private remedy to plaintiff for damages on top of that indebtedness would be inconsistent with the underlying purpose of the cash-basis and budget laws. We have concluded that the cash-basis and budget laws were enacted to protect the public at large and not to provide a benefit to a special class. We hold that, in this case, the plaintiff as a county employee does not have a personal cause of action in tort against the board of county commissioners because the commissioners violated either the cash-basis law or the budget law, and that the trial court was correct in so holding. In view of the holding that the plaintiff has no cause of action in tort for violation of the cash-basis or budget laws, the question of the causal relationship between violations of those statutes and the plaintiff s damages becomes moot and need not be determined. The other issue raised by the plaintiff on this appeal is whether the plaintiff has a cause of action for breach of an implied covenant of good faith and fair dealing. The trial court determined, as a matter of law, that the plaintiff has no cause of action based upon any breach of an employment contract with the county. It is undisputed that the plaintiff was in the position of an employee-at-will. In our recent decision in Morriss v. Coleman Co., 241 Kan. 501, 738 P.2d 841 (1987), this court held that there is no implied covenant of good faith and fair dealing applicable to employment-at-will contracts. That decision is controlling on this point. We hold that the trial court did not err in its decision that the law of Kansas does not provide a cause of action for breach of an implied covenant of good faith and fair dealing in a case involving an employment-at-will contract. The judgment of the district court is affirmed.	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The opinion of the court was delivered by Rosen, J.: Mortgage Electronic Registration Systems, Inc. (MERS) and Sovereign Bank seek review of an opinion by our Court of Appeals holding that a nonlender is not a contingently necessary party in a mortgage foreclosure action and that due process does not require that a nonlender be allowed to intervene in a mortgage foreclosure action. The facts underlying this appeal are not in dispute. On March 19, 2004, Boyd Kesler secured a loan of $50,000 from Landmark National Bank (Landmark) with a mortgage registered in Ford County, Kansas. On March 15,2005, he secured an additional loan of $93,100 from Millennia Mortgage Corp. (Millennia) through a second mortgage registered in Ford County. Both mortgages were secured by the same real property located in Ford County. The second mortgage lies at the core of this appeal. That mortgage document stated that the mortgage was made between Kesler — the “Mortgagor” and “Borrower” — and MERS, which was acting “solely as nominee for Lender, as hereinafter defined, and Lender s successors and assigns.” The document then identified Millennia as the “Lender.” At some subsequent time, the mortgage may have been assigned to Sovereign and Sovereign may have taken physical possession of the note, but that assignment was not registered in Ford County. On April 13, 2006, Kesler filed for bankruptcy in the United States Bankruptcy Court for the District of Kansas, Wichita Division. He named Sovereign as a creditor; although he claimed the secured property as exempt, he filed an intention to surrender the property. The bankruptcy court discharged his personal liability on November 16, 2006. The record contains little documentation or evidence explaining the interplay of the bankruptcy and the fore closure action, except to suggest that the bankruptcy action may have given Sovereign constructive notice of a possible default on payments. On July 27, 2006, Landmark filed a petition to foreclose on its mortgage, serving and naming as defendants Kesler and Millennia. It did not serve notice of the litigation on MERS or Sovereign. In the absence of answers from either defendant, the trial court entered default judgment against Kesler and Millennia on September 6, 2006. The trial court then filed an order of sale on September 29, 2006. Notice of the sale was initially published in the Dodge City Daily Globe on October 4,2006. On October 26,2006, Dennis Bristow and Tony Woydziak purchased the secured property at a sheriffs sale for $87,000, and on November 14, 2006, Landmark filed a motion to confirm sale of the secured property. Also on November 14, 2006, Sovereign filed an answer to the foreclosure petition, asserting an interest in the real property as the successor in interest to Millennia’s second mortgage. A week later, on November 21, 2006, Sovereign filed a motion to set aside or vacate the default judgment and an objection to confirmation of sale. The motion asserted that MERS was a K.S.A. 60-219(a) contingently necessary party and, because Landmark failed to name MERS as a defendant, Sovereign did not receive notice of the proceedings. The motion asked the court to vacate the default judgment under K.S.A. 60-260(b). The motion further asked the court to set aside the surplus from the sale, holding it to later to be paid to Sovereign if the court elected not to grant the motion to vacate. On November 27, 2006, Kesler filed a motion seeking distribution of surplus funds from the sheriff s sale, and on January 3, 2007, Kesler filed a motion joining Landmark’s earlier motion to confirm the sheriffs sale. The trial court conducted a hearing on the various motions on January 8, 2007, at which counsel for Landmark, Kesler, Sovereign, and Bristow appeared and presented their cases. The trial court deferred judgment pending review of the pleadings. On January 16, 2007, MERS filed a motion joining Sovereign’s motion to vacate the journal entry of default judgment and ob jecting to confirmation of the sheriff s sale, followed on January 18, 2007, by a motion to intervene under K.S.A. 60-224. MERS proffered an answer and a cross-claim to the original foreclosure petition. On that same date, the trial court filed an order finding that MERS was not a real party in interest and Landmark was not required to name it as a party to the foreclosure action. The court found that MERS served only as an agent or representative for Millennia. The court also found that Sovereign’s failure to register its interest with the Ford County Register of Deeds precluded it from asserting rights to the mortgage after judgment had been entered. The court denied the motions to set aside judgment and to intervene and granted the motions to confirm the sale and to distribute the surplus. On February 1, 2007, MERS and Sovereign filed motions to reconsider. The trial court conducted a hearing on those motions, at which counsel for Kesler, Sovereign, and MERS appeared and argued. The trial court subsequently entered an order denying the motions to reconsider. MERS and Sovereign filed timely notices of appeal. Prior to the appellants submitting their briefs, the purchasers Bristow and Woydziak filed a motion with the Court of Appeals seeking leave to intervene in the appeal. The Court of Appeals granted the motion. Bristow and Woydziak then filed a motion to compel the office of the Clerk of the Appellate Courts to docket their cross-appeal, which the Court of Appeals denied. The Court of Appeals affirmed the district court in Landmark National Bank v. Kesler, 40 Kan. App. 2d 325, 192 P.3d 177 (2008). This court granted the appellants’ petition for review. I. Did The District Court Abuse Its Discretion In Denying MERS’s Motion To Set Aside Default Judgment And Motion To Intervene As A Contingently Necessary Party? A. Standard of Review Denial of a motion to set aside a default judgment is subject to review under a standard of abuse of discretion. See Canaan v. Bartee, 272 Kan. 720, Syl. ¶ 9, 35 P.3d 841 (2001). A district court decision that denies a motion to join a party as a necessary party under K.S.A. 60-219(a) is also subject to an abuse of discretion standard of review. State ex rel. Graeber v. Marion County Landfill, Inc., 276 Kan. 328, 352, 76 P.3d 1000 (2003). Whether the evidence demonstrates that the statutory requirements for joinder have been met is a mixed question of fact and law. When reviewing a mixed question of fact and law, an appellate court reviews the district court’s factual findings for substantial competent evidence and reviews de novo the district court’s legal conclusions. State v. Fisher, 283 Kan. 272, 286, 154 P.3d 455 (2007). Intervention as a matter of right is subject to the same mixed determination of law and fact as is joinder. K.S.A. 60-224(a). Permissive intervention lies within the discretion of the district court. K.S.A. 60-224(b); see Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 382 n.1, 94 L. Ed. 2d 389, 107 S. Ct. 1177 (1987) (Brennan, J., concurring) (discussing the different standards applied to Federal Rule of Civil Procedure 24[a] and [b]). Judicial discretion is abused when no reasonable person would take the view adopted by the trial court. Harsch v. Miller, 288 Kan. 280, 293, 200 P.3d 467 (2009). Review for abuse of discretion includes review to determine whether erroneous legal conclusions guided the exercise of discretion. State v. Skolaut, 286 Kan. 219, Syl. ¶ 3, 182 P.3d 1231 (2008). To the extent that this appeal requires interpretation of statutory mandates, this court exercises unlimited review. See Genesis Health Club, Inc. v. City of Wichita, 285 Kan. 1021, 1031, 181 P.3d 549 (2008). B. Analysis While this is a matter of first impression in Kansas, other jurisdictions have issued opinions on similar and related issues, and, while we do not consider those opinions binding in the current litigation, we find them to be useful guideposts in our analysis of the issues before us. At the heart of this issue is whether the district court abused its discretion in refusing to set aside the default judgment and in refusing to join MERS as a contingently necessary party. The statutory provision for setting aside a default judgment is K.S.A. 60-255(b), which refers to K.S.A. 60-260(b), relating to relief from judgment, in a manner similar to the correlation between the corresponding federal rules, Fed. R. Civ. Proc. 55(c) and 60(b). K.S.A. 60-260(b) allows relief from a judgment based on mistake, inadvertence, surprise, or excusable neglect; newly discovered evidence that could not have been timely discovered with due diligence; fraud or misrepresentation; a void judgment; a judgment that has been satisfied, released, discharged, or is no longer equitable; or any other reason justifying relief from the operation of the judgment. K.S.A. 60-260(b) requires that the motion be made by a party or by a representative who is in privity with a party, thus precluding a nonparty of standing to file such a motion. K.S.A. 60-255(b) does not, however, require that the movant be a party to the action. See 11 Wright, Miller & Kane, Federal Practice & Procedure: Civil 2d § 2865 (1995). It is appropriate — and probably necessary — for a trial court to consider evidence beyond the bare pleadings to determine whether it should set aside a default judgment. In a motion to set aside default, a trial court should consider a variety of factors to determine whether the defendant (or would-be defendant) had a meritorious defense, and the burden of establishing a meritorious defense rests with the moving party. See Canaan v. Bartee, 272 Kan. 720, 731, 35 P.3d 841 (2001). This conclusion is consistent with the construction of the parallel federal rules: “Generally, a federal court will grant a motion under Rule 55(c) only after some showing is made that if relief is granted the outcome of the suit may be different than if the entry of default or the default judgment is allowed to stand; the showing should underscore the potential injustice of allowing the case to be disposed of by default. In most cases, therefore, the court will require the party in default to demonstrate a meritorious defense to the action as a prerequisite to vacating the default entry or judgment. . . . “A majority of the courts . . . have insisted upon a presentation of some factual basis for the supposedly meritorious defense. . . . “The demonstration of a meritorious defense is not expressly called for by the federal rules and, therefore, the nature and eoctent of the showing that will he necessary is a matter that lies within the court’s discretion. . . . The underlying concern is to determine whether there is some possibility that the outcome of the suit after a full trial will be contrary to the result achieved by the default.” (Emphasis added.) 10A Wright, Miller & Kane, Federal Practice & Procedure: Civil 3d § 2697 (1998). We accordingly find that it was incumbent on the trial court, when ruling on the motion to set aside default judgment, to consider whether MERS would have had a meritorious defense if it had been named as a defendant and whether there was some reasonable possibility MERS would have enjoyed a different outcome from the trial if its participation had precluded default judgment. In determining whether MERS was a contingently necessary party that was entitled to relief from judgment, the trial court was required to consider the factors of K.S.A. 60-219(a) in addition to those of K.S.A. 60-260(b). K.S.A. 60-219(a) defines which parties are to be joined in an action as necessary for just adjudication: “A person is contingently necessary if (1) complete relief cannot be accorded in his absence among those already parties, or (2) he claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action in his absence may (i) as a practical matter substantially impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.” The law relating to a contingently necessary party closely resembles the law relating to vacating a default judgment, in that both require the party asserting the interest to demonstrate a meritorious defense or an interest that may be impaired. In order to prevail on appeal, MERS must demonstrate that the trial court abused its discretion when it found, based on the testimony, evidence, and pleadings before the court at the time when it considered the motion to set aside default judgment, that MERS lacked a meritorious defense to the foreclosure proceeding or had an interest that could be impaired. We will accordingly examine the nature of the interest in the mortgage that MERS has demonstrated. Sovereign is a financial institution that putatively purchased the Kesler mortgage from Millennia but did not register the transaction in Ford County. The relationship of MERS to the transaction is not subject to an easy description. One court has described MERS as follows: “MERS is a private corporation that administers the MERS System, a national electronic registry that tracks the transfer of ownership interests and servicing rights in mortgage loans. Through the MERS System, MERS becomes the mortgagee of record for participating members through assignment of the members’ interests to MERS. MERS is listed as the grantee in the official records maintained at county register of deeds offices. The lenders retain the promissory notes, as well as the servicing rights to the mortgages. The lenders can then sell these interests to investors without having to record the transaction in the public record. MERS is compensated for its services through fees charged to participating MERS members.” Mortgage Elec. Reg. Sys., Inc. v. Nebraska Dept. of Banking, 270 Neb. 529, 530, 704 N.W.2d 784 (2005). The second mortgage designated the relationships of Kesler, MERS, and Millennia and established payment and notice obligations. That document purported to define the role played by MERS in the transaction and the contractual rights of the parties. The document began by identifying the parties: “THIS MORTGAGE is made this 15th day of March 2005, between the Mortgagor, BOYD A. KESLER, (herein ‘Borrower’), and the Mortgagee, Mortgage Electronic Registration Systems, Inc. (‘MERS’), (solely as nominee for Lender, as hereinafter defined, and Lender’s successors and assigns). MERS is organized and existing under the laws of Delaware, and has an address and telephone number of P.O. Box 2026, Flint, MI 48501-2026, tel. (888) 679-MERS. MILLENNIA MORTGAGE CORP., A CALIFORNIA CORPORATION is organized and existing under the laws of CALIFORNIA and has an address of 23046 AVENIDA DE LA CARLOTA #100, LAGUNA HILLS, CALIFORNIA 92653 (herein ‘Lender’).” The third paragraph of the first page of the mortgage document conveyed a security interest in real estate: “TO SECURE to Lender the repayment of the indebtedness evidenced by the Note, with interest thereon; the payment of all other sums, with interest thereon, advanced in accordance herewith to protect the security of this Mortgage; and the performance of the covenants and agreements of Borrower herein contained, Borrower does hereby mortgage, grant and convey to MERS (solely as nominee for Lender and Lender’s successors and assigns) and to the successors and assigns of MERS the following described property located in the County of FORD, State of Kansas.” The first paragraph of the second page of the mortgage document contains the following language that apparently both limits and expands MERS’s rights: “Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Mortgage; but, if necessary to comply with law or custom, MERS, (as nominee for Lender and Lender’s successors and assigns), has the right: to exercise any and all of those interests, including, but not limited to, the right to foreclose and sell the Property; and to take any action required of Lender including, but not limited to, releasing or cancelling this Mortgage.” Paragraph 7 of the mortgage document provides the lender with the right to protect the security: “If Borrower fails to perform the covenants and agreements contained in this Mortgage, or if any action or proceeding is commenced which materially affects Lender’s interest in the Property, then Lender, at Lender’s option, upon notice to Borrower, may make such appearances, disburse such sums, including reasonable attorneys’ fees, and take such action' as is necessary to protect Lender’s interest.” Paragraph 9 of the mortgage document provides the lender with rights in the event of a condemnation: “Condemnation. The proceeds of any award or claim for damages, direct or consequential, in connection with any condemnation or other taking of the Property, or part thereof, or for conveyance in lieu of condemnation, are hereby assigned and shall be paid to Lender, subject to the terms of any mortgage, deed of trust or other security agreement with a hen which has priority over this mortgage.” Paragraph 12 of the mortgage document addresses notice: “Notice. Except for any notice required under applicable law to be given in another manner, (a) any notice to Borrower provided for in this Mortgage shall be given by delivering it or by mailing such notice by certified mail addressed to Borrower at the Property Address or at such other address as Borrower may designate by notice to Lender as provided herein, and (b) any notice to Lender shall be given by certified mail to Lender’s address stated herein or to such other address as Lender may designate by notice to Borrower as provided herein. Any notice provided for in this Mortgage shall be deemed to have been given to Borrower or Lender when given in the manner designated herein.” (Emphasis added.) The signature page of the mortgage document contains language relating to notice in the event of default: “Borrower and Lender request the holder of any mortgage, deed of trust or other encumbrance with a hen which has priority over this Mortgage to give Notice to Lender, at Lender’s address set forth on page one of this Mortgage, of any default under the superior encumbrance and of any sale or other foreclosure action.” (Emphasis added.) The mortgage instrument states that MERS functions “solely as nominee” for the lender and lenders successors and assigns. The word “nominee” is defined nowhere in the mortgage document, and the functional relationship between MERS and the lender is likewise not defined. In the absence of a contractual definition, the parties leave the definition to judicial interpretation. What meaning is this court to attach to MERS’s designation as nominee for Millennia? The parties appear to have defined the word in much the same way that the blind men of Indian legend described an elephant — their description depended on which part they were touching at any given time. Counsel for Sovereign stated to the trial court that MERS holds the mortgage “in street name, if you will, and our client the bank and other banks transfer these mortgages and rely on MERS to provide them with notice of foreclosures and what not.” He later stated that the nominee “is the mortgagee and is holding that mortgage for somebody else.” At another time he declared on the record that the nominee “is more like a trustee or more like a corporation, a trustee that has multiple beneficiaries. Now a nominee’s relationship is not a trust but if you have multiple beneficiaries you don’t serve one of the beneficiaries you serve the trustee of the trust. You serve the agent of the corporation.” Counsel for the auction property purchasers stated that a nominee is “one designated to act for another as his representative in a rather limited sense.” He later deemed a nominee to be “like a power of attorney.” Black’s Law Dictionary defines a nominee as “[a] person designated to act in place of another, usu. in a very limited way” and as “[a] party who holds bare legal title for the benefit of others or who receives and distributes funds for the benefit of others.” Black’s Law Dictionary 1076 (8th ed. 2004). This definition suggests that a nominee possesses few or no legally enforceable rights beyond those of a principal whom the nominee serves. In its opinion below, the Court of Appeals cited Thompson v. Meyers, 211 Kan. 26, 30, 505 P.2d 680 (1973), which provides the only discussion in Kansas of the legal significance of a nominee: “In common parlance the word ‘nominee’ has more than one meaning. Much depends on the frame of reference in which it is used. In Webster’s Third New International Dictionary, unabridged, one of the definitions given is ‘a person named as the recipient in an annuity or grant.’ We view a ‘nominee’, as the term was used by the parties here, not simply in the sense of a straw man or limited agent.. ., but in the larger sense of a person designated by them to purchase the real estate, who would possess all the rights given a buyer . . . .” The legal status of a nominee, then, depends on the context of the relationship of the nominee to its principal. Various courts have interpreted the relationship of MERS and the lender as an agency relationship. See In re Sheridan, 2009 WL 631355, at 4 (Bankr. D. Idaho 2009) (MERS “acts not on its own account. Its capacity is representative.”); Mortgage Elec. Registration System, Inc. v. Southwest Homes of Arkansas, Inc., 2009 Ark. 152, _, 301 S.W.3d 1, 2009 WL 723182 (2009) (“MERS, by the terms of the deed of trust, and its own stated purposes, was the lender s agent”); LaSalle Bank Nat. Ass’n v. Lamy, 2006 WL 2251721, at 2 (N.Y. Sup. 2006) (unpublished opinion) (“A nominee of the owner of a note and mortgage may not effectively assign the note and mortgage to another for want of an ownership interest in said note and mortgage by the nominee.”) The relationship that MERS has to Sovereign is more akin to that of a straw man than to a party possessing all the rights given a buyer. A mortgagee and a lender have intertwined rights that defy a clear separation of interests, especially when such a purported separation relies on ambiguous contractual language. The law generally understands that a mortgagee is not distinct from a lender: a mortgagee is “[o]ne to whom property is mortgaged: the mortgage creditor, or lender.” Black’s Law Dictionary 1034 (8th ed. 2004). By statute, assignment of the mortgage carries with it the assignment of the debt. K.S.A. 58-2323. Although MERS asserts that, under some situations, the mortgage document purports to give it the same rights as the lender, the document consistently refers only to rights of the lender, including rights to receive notice of litigation, to collect payments, and to enforce the debt obligation. The document consistently limits MERS to acting “solely” as the nominee of the lender. Indeed, in the event that a mortgage loan somehow separates interests of the note and the deed of trust, with the deed of trust lying with some independent entity, the mortgage may become unenforceable. “The practical effect of splitting the deed of trust from the promissory note is to make it impossible for the holder of the note to foreclose, unless the holder of the deed of trust is the agent of the holder of the note. [Citation omitted.] Without the agency relationship, the person holding only the note lacks the power to foreclose in the event of default. The person holding only the deed of trust will never experience default because only the holder of the note is entitled to payment of the underlying obligation. [Citation omitted.] The mortgage loan becomes ineffectual when the note holder did not also hold the deed of trust.” Bellistri v. Ocwen Loan Servicing, LLC, 284 S.W.3d 619, 623 (Mo. App. 2009). The Missouri court found that, because MERS was not the original holder of the promissory note and because the record contained no evidence that the original holder of the note authorized MERS to transfer the note, the language of the assignment purporting to transfer the promissory note was ineffective. “MERS never held the promissory note, thus its assignment of the deed of trust to Ocwen separate from the note had no force.” 284 S.W.3d at 624; see also In re Wilhelm, 407 B.R. 392 (Bankr. D. Idaho 2009) (standard mortgage note language does not expressly or implicitly authorize MERS to transfer the note); In re Vargas, 396 B.R. 511, 517 (Bankr. C.D. Cal. 2008) (“[I]f FHM has transferred the note, MERS is no longer an authorized agent of the holder unless it has a separate agency contract with the new undisclosed principal. MERS presents no evidence as to who owns the note, or of any authorization to act on behalf of the present owner.”); Saxon Mortgage Services, Inc. v. Hillery, 2008 WL 5170180 (N.D. Cal. 2008) (unpublished opinion) (“[F]or there to be a valid assignment, there must be more than just assignment of the deed alone; the note must also be assigned. . . . MERS purportedly assigned both the deed of trust and the promissory note. . . . However, there is no evidence of record that establishes that MERS either held the promissory note or was given the authority ... to assign the note.”). What stake in the outcome of an independent action for foreclosure could MERS have? It did not lend the money to Kesler or to anyone else involved in this case. Neither Kesler nor anyone else involved in the case was required by statute or contract to pay money to MERS on the mortgage. See Sheridan, 2009 WL 631355, at *4 (“MERS is not an economic ‘beneficiary’ under the Deed of Trust. It is owed and will collect no money from Debtors under the Note, nor will it realize the value of the Property through foreclosure of the Deed of Trust in the event the Note is not paid.”). If MERS is only the mortgagee, without ownership of the mortgage instrument, it does not have an enforceable right. See Vargas, 396 B.R. 517 (“[w]hile the note is ‘essential,’ the mortgage is only ‘an incident’ to the note” [quoting Carpenter v. Longan, 16 Wall. 271, 83 U.S. 271, 275, 21 L. Ed 313 (1872)]). When it found that MERS did not have an interest in the property that was impaired by the default judgment, the trial court properly considered four factors: (1) that the written pleadings and oral arguments by MERS and Sovereign identified MERS as acting only as a digital mortgage tracking service; (2) that counsel for MERS insisted that no evidence of a financial or property interest was necessary and its argument rested solely on its identity as the mortgagee on the mortgage document, when counsel was directly challenged to produce evidence of a financial or property interest; (3) that evidence showed that Sovereign was on notice that Landmark had leave of the bankruptcy court to proceed with foreclosure and that MERS did not attempt to intervene in the action until after its alleged principal, Sovereign, had already had its motion to intervene and to set aside judgment denied; and (4) that the case law submitted by the parties weighed more in favor of denying the motion. These factors were properly before the trial court and were consistent with the evidence and supported the court’s legal reasoning. Counsel for MERS explicitly declined to demonstrate to the trial court a tangible interest in the mortgage. Parties are bound by the formal admissions of their counsel in an action. Dick v. Drainage District No. 2, 187 Kan. 520, 525, 358 P.2d 744 (1961). Counsel for MERS made no attempt to show any injury to MERS resulting from the lack of service; in fact, counsel insisted that it did not have to show a financial or property interest. MERS argued in another forum that it is not authorized to engage in the practices that would make it a party to either the enforcement of mortgages or the transfer of mortgages. In Mortgage Elec. Reg. Sys. v. Nebraska Dept. of Banking, 270 Neb. 529, 704 N.W.2d 784 (2005), MERS challenged an administrative finding that it was a mortgage banker subject to license and registration requirements. The Nebraska Supreme Court found in favor of MERS, noting that “MERS has no independent right to collect on any debt because MERS itself has not extended credit, and none of the mortgage debtors owe MERS any money.” 270 Neb. at 535. The Nebraska court reached this conclusion based on the submissions by counsel for MERS that “MERS does not take applications, underwrite loans, malee decisions on whether to extend credit, collect mortgage payments, hold escrows for taxes and insurance, or provide any loan servicing functions whatsoever. MERS merely tracks the ownership of the lien and is paid for its services through membership fees charged to its members. MERS does not receive compensation from consumers.” 270 Neb. at 534. Even if MERS was technically entitled to notice and service in the initial foreclosure action — an issue that we do not decide at this time — we are not compelled to conclude that the trial court abused its discretion in denying the motions to vacate default judgment and require joinder of MERS and Sovereign. The record lacks evidence supporting a claim that MERS suffered prejudice and would have had a meritorious defense had it been joined as a defendant to the foreclosure action. We find that the trial court did not abuse its discretion and did not commit reversible error in ruling on the postdefault motions. We note that various arguments were presented suggesting that economic policy provides independent grounds for reversing the trial court. MERS and the amicus curiae American Land Title Association argue that MERS provides a cost-efficient method of tracking mortgage transactions without the complications of county-by-county registration and title searches. The amicus suggests the statutory recording system is grounded in seventeenth-century property law that is entirely unsuited to twentieth-century financial transactions. While this may be true, the MERS system introduces its own problems and complications. One such problem is that having a single front man, or nominee, for various financial institutions makes it difficult for mortgagors and other institutions to determine the identity of the current note holder. “[I]t is not uncommon for notes and mortgages to be assigned, often more than once. When the role of a servicing agent acting on behalf of a mortgagee is thrown into the mix, it is no wonder that it is often difficult for unsophisticated borrowers to be certain of the identity of their lenders and mortgagees.” In re Schwartz, 366 B.R. 265, 266 (Bankr. D. Mass. 2007). “[T]he practices of the various MERS members, including both [the original lender] and [die mortgage purchaser], in obscuring from the public the actual ownership of a mortgage, thereby creating the opportunity for substantial abuses and prejudice to mortgagors . . . , should not be permitted to insulate [the mortgage purchaser] from the consequences of its actions in accepting a mortgage from [the original lender] that was already the subject of litigation in which [the original lender] erroneously represented that it had authority to act as mortgagee.” Johnson, 2008 WL 4182397, at “4. The amicus argues that “[a] critical function performed by MERS as the mortgagee is the receipt of service of all legal process related to the property.” The amicus makes this argument despite the mortgage clause that specifically calls for notice to be given to the lender, not the putative mortgagee. In attempting to circumvent the statutory registration requirement for notice, MERS creates a system in which the public has no notice of who holds the obligation on a mortgage. The Arkansas Supreme Court has noted: “The only recorded document provides notice that [the original lender] is the lender and, therefore, MERS’s principal. MERS asserts [the original lender] is not its principal. Yet no other lender recorded its interest as an assignee of [the original lender]. Permitting an agent such as MERS purports to be to step in and act without a recorded lender directing its action would wreak havoc on notice in this state.” Southwest Homes, 2009 Ark. 152,____. In any event, the legislature has established a registration requirement for parties that desire service of notice of litigation involving real property interests. It is not the duty of this court to criticize the legislature or to substitute its view on economic or social policy. Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 348, 789 P.2d 541 (1990). II. Did The Trial Court’s Refusal To Join MERS As A Party Violate MERS’s Right To Due Process? MERS contends that the Fourteenth Amendment and §18 of the Kansas Constitution Bill of Rights guarantees of due process were violated when the foreclosure action was consummated without MERS receiving notice of the proceeding and without MERS having the opportunity to intervene in the action. Although joinder is evaluated under an abuse of discretion standard, if a constitutional right is involved the trial judge’s exercise of discretion is limited. Discretion must be exercised not in opposition to, but in accordance with, established principles of law. It is not an arbitrary power. In re Adoption of B.G.J., 281 Kan. 552, 563, 133 P.3d 1 (2006). The Fourteenth Amendment to the United States Constitution provides: “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.” Section 18 of the Kansas Constitution Bill of Rights provides: “All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.” Due process provides any interested party with the elementary and fundamental right to notice of the pendency of an action and the opportunity to present its objections in any proceeding that is to be accorded finality. Alliance Mortgage Co. v. Pastine, 281 Kan. 1266, 1275, 136 P.3d 457 (2006) (citing Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 314, 94 L. Ed. 865, 70 S. Ct. 652 [1950]). In the absence of a protected property or liberty interest, there can be no due process violation. State ex rel. Tomasic v. Unified Gov’t of Wyandotte County/Kansas City, 265 Kan. 779, 809, 962 P.2d 543 (1998). The Due Process Clause does not protect entitlements where the identity of the alleged entitlement is vague. Castle Rock v. Gonzales, 545 U.S. 748, 763, 162 L. Ed. 2d 658, 125 S. Ct. 2796 (2005). A protected property right must have some ascertainable monetary value. 545 U.S. at 766. Indirect monetary benefits do not establish protection under the Fourteenth Amendment. 545 U.S. at 767. An entitlement to a procedure does not constitute a protected property interest. 545 U.S. at 764. MERS’s contention that it was deprived of due process in violation of constitutional protections runs aground in the shallows of its property interest. As noted in the discussion of the first issue above, MERS did not demonstrate, in fact, did not attempt to demonstrate, that it possessed any tangible interest in the mortgage beyond a nominal designation as the mortgagor. It lent no money and received no payments from the borrower. It suffered no direct, ascertainable monetary loss as a consequence of the litigation. Having suffered no injury, it does not qualify for protection under the Due Process Clause of either the United States or the Kansas Constitutions. Furthermore, MERS received the full opportunity to present arguments and evidence to the trial court. Only after Sovereign clearly had notice of the litigation, had filed a motion to intervene, and had participated in a hearing on the motion did MERS — Sovereign’s nominee — elect to file for joinder. Despite its late decision to enter an appearance in the case, the trial court allowed MERS the opportunity to present arguments and evidence. It cannot be said that MERS was prejudicially denied notice and the opportunity to be heard. We find that the district court did not abuse its discretion in denying the motions to vacate and for joinder and in holding that MERS was not denied due process. We accordingly affirm the district court and the Court of Appeals.	[ -79, -24, -55, 46, 72, -32, 42, 74, 90, -14, 39, 83, 101, -54, 5, 79, -27, 109, -27, 120, 85, -78, 103, -55, -42, -14, -80, -43, -80, 93, -28, 93, 76, -48, 66, -43, -58, -118, -121, 92, 14, -122, 24, 69, -39, 72, 48, -85, 80, 78, 85, 13, -13, 45, -71, 75, 105, 42, 75, -67, -48, -72, -117, -115, 91, 17, -77, 4, -74, 103, 72, -82, -110, -80, 1, -23, 126, 54, -58, 52, 79, 27, 41, 54, 98, 3, 57, -51, -4, -103, 11, -41, -113, -121, -112, 88, 67, 32, -98, -97, 120, 6, 6, -2, -26, -124, 31, -20, 3, -54, -42, -109, 12, 123, -104, 11, -9, 65, -80, 113, -114, -32, 95, -58, 60, 27, -114, -39 ]
The opinion of the court was delivered by Miller, J.: This is an appeal by the State Department of Social and Rehabilitation Services (SRS) from an order of the Shawnee County District Court granting judgment to the plaintiff, Americare Properties, Inc., d/b/a Russell Kare Center and AlaFern Nursing Home, in the amount of $106,928.29, plus interest, costs, and attorney fees. Appeal was timely, and the case was transferred to this court pursuant to K.S.A. 20-3018(c). The facts are not in dispute. Russell Kare Center and AlaFern Nursing Home are two adult care homes, classified as intermediate care facilities and located in Russell, Kansas. Plaintiff, Americare Properties, Inc., entered into an agreement for the purchase of Russell Kare Center and for the lease with option to buy AlaFern Nursing Home. The change in ownership took place on September 30, 1984. Roth transactions constitute a change of ownership under SRS regulation, K.A.R. 30-10-lb(c)(2), (4). At the time of the transfer, both facilities were covered by provider agreements, which are prerequisites to participation in the federal Medicaid program. Russell Kare Center’s provider agreement did not expire until June 30, 1985, and the AlaFern Nursing Home agreement did not expire until March 31, 1985. Roth homes were also licensed with the Kansas Department of Health and Environment (KDHE), AlaFern’s license extending until March 31,1985, and Russell Kare’s license to June 30, 1985. Provider agreements are entered into between the adult care facility and the SRS. K.A.R. 30-10-lc. Licenses for adult care homes are issued by the Department of Health and Environment. K.A.R. 28-39-77. KDHE was notified of the impending sale of both homes on August 31, 1984. On October 1, 1984, immediately after the change in ownership, Americare called SRS and requested all applications necessary for a change of ownership. An exchange of calls and correspondence followed. On October 16, the provider applications were sent to SRS, and on November 5 an application for licensure was directed to the KDHE. Ultimately, on November 26, 1984, a license was issued by KDHE to the new owners for each facility. SRS refused to reimburse Americare for services rendered between October 1,1984, the day Americare took over operation of the two homes, and November 26, 1984, the day on which the licenses were issued. As a result of this decision, Americare was denied Medicaid reimbursement in the amount of $106,928.29. On administrative appeal, the Chief Hearing Officer affirmed SRS’s decision to deny payment, and the State Appeals Committee affirmed. Americare appealed to the Shawnee County District Court, which reversed the agency decision and allowed Americare to recover the disputed reimbursement. The trial judge aptly stated the reasons for his decisions as follows: “The scope of review of the district court over an administrative action is stated in K.S.A. 77-621. The issue before the Court concerns respondent’s interpretation of the law: Whether or not respondent properly relied on state licensure requirements to rule that a medicaid provider agreement becomes void when it passes to a nonlicensed new owner. The Court may grant relief to petitioners only if it determines ‘the agency has erroneously interpreted or applied the law.’ K.S.A. 77-621(c)(4). Petitioner claims that federal regulations require respondent to pay for medicaid payments totalling $106,928.29 for services rendered to residents of its two nursing homes. Respondent admits to the amount of money involved in the matter but claims it rightfully withheld reimburs ement. “Under Kansas law, an adult care home may not operate without a license. K.S.A. 39-926. These licenses are not transferable. K.S.A. 39-928. The federal regulations concerning the transfer of provider agreements state that where an owner of a facility receiving reimbursement for services rendered medicaid recipients under a provider agreement transfers ownership of the facility, the provider agreement is automatically assigned to the new owner. 42 C.F.R. sec. 442.14(a). Respondent claims that in those situations where a new owner had delayed in obtaining a license, the provider agreement automatically transfers to the new owner, but it immediately becomes null and void because of the new owner’s nonlicensed status. The Court finds that respondent’s method of reconciling the conflict between Kansas law and 42 C.F.R. sec. 442.14 thwarts the purpose of the federal regulation. ‘A state is not obligated to participate in the medicaid program; however, once it has voluntarily elected to participate, the state must comply with federal standards.’ Country Club Home, Inc. v. Harder, 228 Kan. 756, 763, 620 P.2d 1140 (1980). 42 C.F.R. sec. 442.14 makes reference to the Federal Register, 45 F.R. 22935, Apr. 4, 1980, which comments on the fact that some state laws prohibit transfer of a license to a new owner, so an automatic transfer of a provider agreement would make a state violate its own rules. The Comment responds to this concern by stating that the primary goal of automatic assignment ‘is to protect beneficiaries and recipients against interruption of coverage.’ The Comment also states: “ ‘All providers are required to be in compliance with State and local laws as condition of participation. If the State, after a licensure survey, refuses to issue a license because of noncompliance with State law, the facility would no longer be eligible to participate in the Federal programs. It must be remembered that this regulation refers to transfers of provider agreements and not to transfers of State licenses.’ In this case, there was a delay in getting a license, not a refusal of state licensure. The Court finds the automatic transfer regulation clearly applies to the situation where a new owner takes over a nursing home, provides the proper care, but does not receive an automatic license from the state. This is the very situation where beneficiaries and recipients should not be punished for a delay in getting a state license. “The Court finds that the SRS erroneously interpreted the law when it held the provider agreement void in the hands of the new owner. The Court understands that the policy of nonpayment for services rendered while unlicensed was meant to discourage new owners from procrastinating in their compliance of state law upon change of ownership. However, because of 42 C.F.R. sec. 442.14 and its clear intent to guard against interruption of medicaid, the Court finds the SRS should use other methods to ensure timely compliance with the state licensure law. “Therefore, for the reasons stated above, the Court grants relief to petitioners in the amount of $106,928.29, plus interest and costs.” State law, on the one hand, requires a license to operate an adult care home. K.S.A. 39-926. Operating an adult care home without a license subjects the offender to a fine of not more than $100, or imprisonment in a county jail for a period of not more than six months, or both. K.S.A. 39-943. Licenses are not transferable. K.S.A. 39-928. Further, Kansas regulations require new owners to apply for new provider agreements. K.A.R. 30-10-lb(c)(2), (4). The federal regulation, however, provides as follows: “Assignment of agreement. When there is a change of ownership, the Medicaid agency must automatically assign the agreement to the new owner.” 42 C.F.R. § 442.14(a) (1986). Additionally, the federal regulation provides that assigned agreements are subject to all applicable statutes and regulations and to the terms and conditions under which the original agreement was issued. The purpose of the federal regulation is to provide continuity of coverage for beneficiaries and recipients, whenever there is a change of ownership. See federal comments accompanying the publication of 42 C.F.R. § 442.14. 45 Fed. Reg. 22,935 (1980). The State reconciled these conflicting statutes and regulations by finding that the provider agreement was automatically assigned, but once assigned, immediately became null and void because of the unlicensed status of the homes. One of the examples relied upon by the Chief Hearing Officer was an instance in which the operator of a licensed nursing home, who had been leasing the physical property, bought the property. This created a change of ownership, and the home was denied reimbursement for Medicaid services during the period of time between the purchase and the issuance of a new license. It does not appear to us that such procedure comports with the purpose of the federal regulation. In the case at hand, both Russell Kare Center and AlaFern Nursing Home were licensed and held provider agreements at the time of the transfer of ownership. There is nothing in the record to indicate that either KDHE or SRS inspected the premises during the unlicensed interim period, or that the services to the recipients fell below standards during that time, or that Americare or any of its employees or the homes were unqualified for licensure under any state statute or regulation. The federal regulation requires providers to meet state license standards; apparently, although its application to the state was tardy, Americare met those requirements. The agency decision to deny payment was based on an SRS “policy” effective March 15, 1984, and announced in the Kansas Medicaid/MediKan Bulletin: “REIMBURSEMENT RELATED TO OWNERSHIP CHANGES MODIFIED MARCH 15, 1984 Effective March 15, 1984, SRS will not reimburse services in adult care homes not licensed by the Department of Health and Environment (H & E). This policy, consistent with Kansas law, requires that in cases of ownership change the new owner cannot be reimbursed for any days which follow ownership change that are prior to relicensure by H & E.” This “policy” was not adopted as a regulation, but was established by SRS after some facilities were found to be operating without licenses following an ownership change. While this policy is intended to prod new owners into prompt action in securing a license, the policy does not appear to take into account the principal purpose of the federal regulation: to provide continued services for beneficiaries and recipients, and guard them against interruption of coverage. We agree with the district court that SRS erroneously interpreted the law when it held that the provider agreements were transferred but immediately became void in the hands of the new owner. Federal law preempts state law to the extent that state law conflicts with federal law. Ray v. Atlantic Richfield Co., 435 U.S. 151, 158, 55 L. Ed. 2d 179, 98 S. Ct. 988 (1978). The preemption doctrine applies to regulations as well as statutes. Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 81 L. Ed. 2d 580, 104 S. Ct. 2694 (1984). The intent of the federal agency in enacting the automatic transfer regulation was clearly to avoid lapses in coverage when a facility changes ownership. Allowing the State to withhold payments squarely defeats that purpose. We conclude that the federal regulation is controlling, and, under the specific facts of this case, we hold that Americare Properties, Inc., is entitled to recover Medicaid reimbursement in the amount of $106,928.29, plus interest and costs. One other issue remains. The district court awarded attorney fees, to Americare. K.S.A. 77-622 governs the relief available upon the appeal of agency decisions. Subsection (c) allows the court to award attorney fees only to the extent expressly authorized by other law. K.A.R. 30-10-12(b)(4)(A)(ii)(cc) (1983, revoked May 1,1985), cited by the trial court in its opinion as authority for the awarding of attorney fees, discusses costs related to the appeal. It does not specifically mention attorney fees, and does not provide for the recovery of such fees by the appellant. We conclude that attorney fees are not recoverable in this action. The judgment of the district court awarding Americare relief in the amount of $106,928.29, plus interest and costs, is affirmed; the judgment permitting recovery of attorney fees is reversed.	[ 87, -24, -35, 124, 24, 96, 58, 0, 99, -73, 39, 81, -87, -30, 17, 123, -57, 39, 65, 73, -125, -77, 83, 32, 80, -5, -15, -43, -69, -33, -92, -107, 72, 112, -118, 53, -126, -126, -19, 80, -114, 68, -102, -15, -43, 2, 56, 111, 82, 10, 113, 12, -77, 45, 53, -21, 25, 62, -103, 45, -119, -39, -21, -107, 123, 23, 32, 4, -8, 77, 80, 58, -110, 113, 8, -84, 115, 54, -122, 52, 30, -71, 36, 101, 99, 35, 37, -11, -92, 48, 15, 82, -115, -90, -77, 88, 114, 1, -74, 28, 80, 26, 3, -2, -17, -108, 95, 104, -122, -50, -34, -79, 78, 113, 10, 13, -1, 5, 32, 113, -115, -74, 93, 119, 48, -101, -54, -72 ]
The opinion of the court was delivered by McFarland, J.: Janice Moore purchased a 1981 Chevrolet Silverado pickup truck from defendant R. Z. Sims Chevrolet-Subaru, Inc. (dealership). She brings this action against, inter alia, the dealership and two of its employees, Charles L. Kent (a/k/a Clark Kent) and James E. Davies, seeking damages for alleged intrusion upon seclusion (invasion of privacy) in connection with the dealership’s attempted repossession of the vehicle. The defendant dealership counterclaimed against plaintiff seeking a judgment for the unpaid balance due on the vehicle and related relief. The dealership’s counterclaim was determined in a bench trial with the dealership prevailing therein. Plaintiff appeals from said judgment. Plaintiff s tort action was determined in a jury trial with plaintiff being awarded $12,000. The dealership and one of the employees appeal therefrom. The issues raised in the appeals are as follows: I. Whether, as a matter of law, the action of Charles L. Kent, in entering the kitchen-office area of the Salebarn Cafe to discuss with Janice Moore the repossession of the truck, provides a cause of action for intrusion upon seclusion, II. whether Janice Moore’s damages were proved with reasonable certainty, and III. whether the district court erred in holding that the sale of the truck was not a door-to-door sale within the purview of the Kansas Consumer Protection Act. The facts must be set forth in considerable detail. On Wednesday, May 25, 1983, Larry Moore entered the used car lot at R. Z. Sims Chevrolet in Hutchinson. Charles L. Kent, a salesman at the dealership, approached Larry, who indicated an interest in purchasing a certain 1981 Chevrolet Silverado pickup truck on the lot. Kent and Larry took a test drive in the truck, returned to the dealership, and filled out the necessary papers. Larry provided credit information on himself and his wife, Janice Moore. Kent informed Larry he saw no problem with financing and allowed Larry to take the truck home. Larry drove the truck to the home of his wife’s friend Wilda Reed where Janice was waiting. Janice Moore was convinced that Larry’s loan would not be approved. Larry was to return to the dealership the next day at noon to sign the loan papers. Janice called the dealership to inform Kent that Larry would be late in returning with the truck, but she was unable to reach Kent and left a message. When Larry arrived at the dealership, Kent informed him that the loan had not been approved, and Larry left in his 1965 Ford F250 pickup truck. During the next two days Janice expressed an interest in the Silverado pickup truck. Kent testified that he returned Janice’s call of May 26 later that same day and she expressed an interest in purchasing the truck, providing him with additional credit references at that time. Janice testified that she received calls from Kent and R. Z. Sims’ business manager, Jim Davies, on Saturday morning, May 28, 1983, in which she was asked if she was interested in purchasing the truck. An agreement was reached and on Saturday, May 28, 1983, Kent delivered the 1981 Chevrolet Silverado to the Salebarn Cafe in McPherson, which Janice owned and operated. Kent was instructed by Jim Davies to have Janice sign the necessary papers, collect a check for the $1,500 down payment, and obtain possession of, and title to, the Moores’ 1965 Ford F250 pickup truck to serve as a trade-in. Janice informed Kent that she had made arrangements to secure the down payment the following Tuesday, May 31, 1983, and that this arrangement had been approved by Davies. Kent left in Moore’s traded-in 1965 Ford pickup truck. Janice was ill the following Tuesday but on the next day, Wednesday, June 1, 1983, made two unsuccessful attempts to secure a loan for the down payment. On June 2,1983, Janice and Larry took the 1981 Chevrolet to the dealership and Janice indicated that because she could not secure the down payment, the deal was off. Davies erroneously indicated that the Moores’ trade-in had already been sold and would not accept the return of the 1981 truck. On June 3, 1983, Jack Bowker, the Moores’ attorney, sent a letter to the dealership requesting that the dealer either return the old truck or allow Janice to make the down payment in installments. Bowker also requested that any further dealings between the dealership and Janice Moore be handled through him. On June 9 or 10, 1983, Kent drove to the Salebarn Cafe and attempted to repossess the 1981 Chevrolet truck. He entered the cafe and asked to see Janice. After waiting for a time, Kent entered the kitchen-office area of the cafe through doors marked “Employees Only” and talked to Janice. During the course of Kent’s discussion with Janice, Larry was called and came to the cafe. Janice was unsuccessful in contacting her attorney. Both Janice and Larry were upset, and Kent left the cafe without taking the 1981 Chevrolet truck. On June 13, 1983, Janice filed suit in McPherson County District Court, seeking either cancellation of the contract or a finding that the dealership had waived its rights to the $1,500 down payment. The petition also alleged harassment by telephone, defamation, and violations of the Kansas Consumer Protection Act (KCPA). The dealership answered and counterclaimed for payment of $1,500, for execution of the certificate of title to the 1965 Ford F250 trade-in vehicle, and for the balance due on the sales agreement. The counterclaim also sought authorization to repossess and sell the 1981 Chevrolet and apply the net proceeds of the sale against the judgment. An amended petition filed May 10, 1984, alleged multiple violations of the KCPA. The amended petition also alleged that Kent and Davies engaged in outrageous conduct toward Janice, defamed Janice, and invaded her privacy from May 31, 1983, through June 10, 1983. The proceedings were bifurcated with a bench trial on the alleged KCPA violations and a jury trial on the tort claims. The bench trial was held February 19-20, 1985, the district court finding that no violation of the KCPA had been established. Judgment was rendered for the dealership on its counterclaim in the amount of $8,442.82. The dealership was authorized to foreclose on the 1981 Chevrolet, sell it, and apply the net proceeds of the sale to the judgment. Janice Moore was also ordered to sign and deliver the certificate of title to the 1965 Ford pickup to the dealership. Prior to the jury trial on the tort claim, a pretrial order was filed July 29, 1985, in which Janice Moore framed four issues, two based on harassment by telephone and two based on invasion of privacy (intrusion upon seclusion) in the June 9 or 10, 1983, attempted repossession of the truck. The district court granted the defendants’ motion for summary judgment with regard to the harassment by telephone allegations but overruled the motion for summary judgment with regard to the invasion of privacy allegations arising from Kent’s entry into the kitchen-office area of the cafe. The jury trial was held September 10-11, 1985, and the jury found for Janice Moore in the amount of $12,000. This appeal and cross-appeal arise from said trials. We shall first consider the issues arising from the appeal of the dealership and its employee Kent. These arise from the jury trial on Janice Moore’s intrusion upon seclusion claim. The jury was instructed, in pertinent part, as follows: “INSTRUCTION NO. 1 “Plaintiff Janice Moore claims that she sustained injuries and damages as a result of the defendant R. Z. Sims Chevrolet-Subaru, Inc., after having received a letter from Mrs. Moore’s attorney requesting that they deal through him, proceeded to instruct the defendant Clark Kent to go to her cafe in McPherson, Kansas, and repossess a pickup truck; that the defendant Clark Kent in an effort to comply with instructions entered the cafe and, though instructed by the plaintiff to wait and in violation of an ‘Employees Only’ sign violated her privacy by proceeding to enter the private area of the cafe in order to confront the plaintiff with demands for the return of the truck and to make threats that she would be required to pay damages and mileage; that as a result of such intrusion she became hysterical, physically sick, disabled and could not work or tend to her business and personal affairs. The plaintiff has the burden to prove that her claims are more probably true than not true. “The defendants Clark Kent and R. Z. Sims Chevrolet-Subaru, Inc., deny that Clark Kent intentionally intruded into the kitchen and business office area of the Salebarn Cafe but entered that area upon the express or implied consent of Janice Moore for a legitimate purpose of repossessing the Chevrolet Silverado pickup truck. “The defendants further deny that the kitchen and business office of the Salebarn Cafe was a secluded or isolated place. “The defendants further deny that the entry by Clark Kent into the kitchen and business office of the Salebarn Cafe was highly offensive to an ordinary person but was a reasonable exercise of the rights of repossession of R. Z. Sims Chevrolet-Subaru, Inc. “The defendants contend that any emotional upset and distress experienced by the plaintiff was not due to the entry by Clark Kent into the kitchen and business office area of the Salebarn Cafe but was due to other causes.” “INSTRUCTION NO. 2 “The right of privacy is the right to be let alone. “In order to constitute an invasion of the right of privacy, the act must be of such a nature that would cause mental distress or injury to a person having ordinary feelings and intelligence. “The rights of privacy is invaded if another intentionally intrudes, physically upon the solitude or seclusion of another and if the intrusion would be highly offensive to an ordinary man. “PIK [Civ. 2d] 14.61.” “INSTRUCTION NO. 5 “When one accepts credit he or she impliedly consents for the creditor to take reasonable steps to pursue payment and recovery of secured property. The right of a debtor to privacy is subject to the right of a creditor to take reasonable steps to collect the debt even though the creditor’s method may result in some actual, though not actionable, invasion of privacy. In order for an invasion of such right to be actionable, it must be of such manner and nature as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities.” Thus, the only theory of liability submitted to the jury was intrusion upon seclusion (invasion of privacy) arising from Kent’s physical entry into the kitchen-office area of plaintiff s cafe which was marked “Employees Only.” These instructions correctly state the law and the contentions of the parties. The first issue is whether or not, as a matter of law, the action of Kent in entering the kitchen-office area to speak with Janice Moore about repossession of the truck is a sufficient legal basis for an intrusion upon seclusion claim. Put another way, did the district court err in overruling the motion of the dealership and Kent for a directed verdict made at the close of the evidence? We believe that the motion should have been granted. Restatement (Second) of Torts § 652B (1976) provides: “One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.” In Werner v. Kliewer, 238 Kan. 289, 710 P.2d 1250 (1985), we quoted Restatement (Second) of Torts § 652B and stated: “A cause of action based upon § 652B was specifically recognized by this court in Froelich v. Adair, 213 Kan. 357, 359, 516 P.2d 993 (1973). However, to prevail upon such a claim it is necessary to establish two factors: First, something in the nature of an intentional interference in the solitude or seclusion of a person’s physical being, or prying into his private affairs or concerns, and second, that the intrusion would be highly offensive to a reasonable person. Comment b. to § 652B of the Restatement reads: ‘The invasion may be by physical intrusion into a place in which the plaintiff has secluded himself, as when the defendant forces his way into the plaintiffs room in a hotel or insists over the plaintiff s objection in entering his home. It may also be by the use of the defendant’s senses, with or without mechanical aids, to oversee or overhear the plaintiff s private affairs, as by looking into his upstairs windows with binoculars or tapping his telephone wires. It may be by some other form of investigation or examination into his private concerns, as by opening his private and personal mail, searching his safe or his wallet, examining his private bank account, or compelling him by a forged court order to permit an inspection of his personal documents. The intrusion itself makes the defendant subject to liability, even though there is no publication or other use of any kind of the photograph or information outlined.’ ” 238 Kan. at 294. In Werner, the plaintiff sued her physician for invasion of privacy due to his disclosure of medical information without her consent. The physician sent a letter to the district court during divorce and child custody proceedings involving plaintiff and her husband. The letter was written at the request of plaintiff s husband and detailed plaintiff s treatment and behavior while a patient. This court upheld a grant of summary judgment in favor of the physician, holding that there had been no cause of action established based on intrusion upon seclusion. 238 Kan. at 295. In Froelich v. Werbin, 219 Kan. 461, 548 P.2d 482 (1976), defendant was accused of invading plaintiff s privacy by hiring a hospital orderly to enter plaintiff s hospital room and obtain a sample of his hair. The plaintiff was unaware that the hair sample had been taken until later but claimed to have suffered mental distress as a result of the intrusion upon his seclusion. In upholding the entry of a directed verdict in favor of the defendant, we stated: “In comment (d) of § 652B of the Restatement it is stated that there is no liability for intrusion upon seclusion unless interference with the plaintiff s seclusion is a substantial one, of a kind that would be highly offensive to the ordinary reasonable man, as the result of conduct to which the reasonable man would strongly object. In our judgment the trial court was correct in holding that the plaintiff s evidence failed to establish a wrongful intrusion of such a nature as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities. Here the undisputed evidence showed that the plaintiffs hair was obtained by the hospital orderly in an unobtrusive manner. In our judgment the evidence was insufficient as a matter of law to establish a cause of action for intrusion upon seclusion.” 219 Kan. at 465. A further factor in this case is that plaintiff and defendant were involved in a debtor-creditor relationship, and the objected-to conduct arises directly from that relationship. In Dawson v. Associates Financial Services Co., 215 Kan. 814, 529 P.2d 104 (1974), this court recognized a cause of action for harassment of a debtor by a creditor, stating the following pertinent rules with regard to the debtor-creditor relationship: “The issue has not been squarely presented in a debtor-creditor situation. In this situation it must be recognized the right to be left alone is qualified by the rights of others. When one accepts credit, the debtor impliedly consents for the creditor to take reasonable steps to pursue payment even though it may result in actual, though not actionable, invasion of privacy. [Citation omitted.] In the debtor-creditor situation the right of debtor to privacy is subject to the right of a creditor to take reasonable steps to collect the debt. [Citation omitted.] “In this area of the developing law, the business community must be given some latitude to pursue reasonable methods of collecting debts even though such methods often might result in some inconvenience or embarrassment to the debtor. [Citation omitted.] Debtors cannot object to some inconvenience in connection with their creditor s efforts to collect a debt. It has been held that debtors’ tender sensibilities are protected only from oppressive, outrageous conduct. [Citations omitted.]” 215 Kan. at 820-21. Here, Janice had secured possession of the dealership’s Silverado truck and had paid no money therefor. The truck she had traded in was in the possession of the dealership but the title thereto had not been signed, hence, the dealership could not sell the trade-in. The salesman went to the purchaser’s place of business (a cafe owned and operated by her) to resolve what were significant problems in the transaction. The salesman was told to wait for Janice at a table in the cafe. When Janice did not appear, the salesman entered the kitchen-office area to talk with her. Considering the debtor-creditor relationship of the parties with its rather unique problems and the facts of the alleged intrusion, we conclude the district court should have sustained the motion for a directed verdict. It is difficult to perceive the kitchen of a cafe as being an area of seclusion or solitude. Kent’s entrance therein, under the circumstances herein, is not a substantial intrusion upon whatever seclusion therein existed to which a reasonable person would strongly object or find highly offensive. The judgment entered in favor of plaintiff Moore against defendant dealership and Kent must be reversed. By virtue of our determination of the first issue, we do not reach the second issue concerning the propriety of the damages awarded plaintiff Moore. This brings us to the sole issue raised by Janice Moore in her cross-appeal from the judgment entered against her following the bench trial on the dealership’s counterclaim. Moore contends that the district court erred in holding that the sale of the Silverado pickup truck was not a door-to-door sale within the purview of the Kansas Consumer Protection Act, K.S.A. 50-623 et seq. K.S.A. 50-640(a) provides, in part: “[A] consumer has the right to cancel a door-to-door sale made within this state until midnight of the third business day after the day on which the consumer signs an agreement or offer to purchase . . . .” K.S.A. 50-640 requires that a door-to-door sales agreement give notice to the buyer of his or her right to cancel. Moore contends the Silverado sale was a door-to-door sale, that she had a right to cancel within three days after the transaction, and the dealership violated the act by not notifying her of her right to cancel. The dealership countered that this was neither a door-to-door sale nor a consumer transaction. The district court, following the bench trial, made extensive findings of fact and conclusions of law. It is worthwhile to include herein the pertinent portions thereof. “FINDINGS OF FACT “On May 25, 1983, the plaintiffs husband, Frank Larry Moore, went to the used car lot of the defendant, R. Z. Sims Chevrolet-Subaru, Inc., in Hutchinson, Kansas. He was met by a salesman, Clark Kent, and together they test-drove a 1981 Chevrolet pickup which Mr. Moore had expressed an interest in and which is the subject matter of this lawsuit. “After test-driving the vehicle in question, Mr. Moore indicated he wanted to buy it for his wife, Janice Moore, d/b/a Salebarn Cafe. Terms of the sale were discussed between Moore and Kent, and Moore gave Kent credit information about himself and his wife to be used on a credit application. Kent was led to believe that Moore represented himself and his wife in this transaction. Kent advised Moore that everything appeared to be okay and told him he could take the pickup home if he returned by noon the next day (May 26, 1983) to sign the paperwork. License tags were taken off Moore’s 1965 pickup and put on the 1981 pickup and he then left the used car lot and returned home. “Upon arriving in McPherson, Larry Moore picked up his wife and Wilda Reed and went for a drive. He advised the plaintiff that he was purchasing the pickup and needed to return to Hutchinson the next day by noon to sign the paperwork. The plaintiff was aware that the 1965 Ford pickup, which was really her pickup (actually titled in Larry Moore and Janice Moore’s names but bought with Janice Moore’s money), was to be used as a trade-in for the 1981 Chevy pickup. She liked the 1981 pickup and at no time protested about the proposed purchase or the use of her 1965 Ford pickup as a trade-in, although she did indicate to Wilda Reed that she doubted that a loan would be made to her husband based on his past credit. “On May 26,198[3], Mr. Moore returned to R. Z. Sims Chevrolet-Subaru, Inc., in Hutchinson. However, he got a late start and didn’t arrive until after one o’clock p.m. In the meantime, the plaintiff had called R. Z. Sims Chevrolet-Subaru, Inc., to inform Clark Kent that her husband had gotten a late start and wouldn’t be arriving until after twelve o’clock noon. However, she was not able to talk to Clark Kent since he was unavailable. When Mr. Moore arrived he was advised by Jim Davies that his credit information had been checked out and he did not qualify for a loan. At that point Mr. Moore switched tags on the pickup and left R. Z. Sims Chevrolet-Subaru, Inc., in a state of depression. He did not return home until the next day and instead stayed in a motel for the night and drank his depression away. “After Mr. Moore left the premises on May 26,1983, Clark Kent tried to return the plaintiff s call on three occasions. Each time he was unable to talk to her for one reason or another. Finally, at approximately 2:30 p.m., Kent was able to contact the plaintiff. The plaintiff explained why she had called for Kent earlier in the day and then asked if the loan had been approved. Kent advised her that it had not. The plaintiff then asked why since her credit was good. The plaintiff and Kent had a further brief conversation during which time he took additional credit information from her and the conversation ended with Kent telling her he would see what he could do further. Thereafter Kent gave this additional credit information to Davies. “Sometime on May 26 or 27, 1983, Davies again processed the credit application of the Moores, except this time Janice Moore and her credit were more fully scrutinized. The loan was approved. Davies called Janice Moore on May 27, 1983, at approximately 12:30 p.m. and informed her of the approval. The terms of the sale were discussed, including purchase price, trade-in allowance for the 1965 Ford pickup and down payment of fifteen hundred dollars. She informed Davies she wanted to take title to the pickup as Janice Moore d/b/a Salebarn Cafe and asked that they deliver the truck to her in McPherson since she could not get away from work. Davies agreed. “On May 28, 1983, Davies instructed Kent to deliver the 1981 pickup to the plaintiff, get the plaintiff to sign all the paperwork and return with the trade-in Ford pickup and the down payment. Kent arrived in McPherson somewhere around nine o’clock a.m. The plaintiff signed all the paperwork and Kent returned to Hutchinson without the down payment or a signed title to the 1965 Ford pickup. Upon arriving at R. Z. Sims Chevrolet-Subaru, Inc., Kent told Davies that he did not get the down payment because the plaintiff had told him that she did not have it and that she had made other arrangements for its payment with Davies. Additionally, Kent stated the title to the Ford pickup was unsigned because he was not sure of where to have the plaintiff sign on it. Davies, upset at not having the down payment, called the plaintiff on two occasions on the 28th. The plaintiff told Davies she could not get the down payment until she was able to get to the bank, which would be the next Tuesday. After talking to Davies, the plaintiff contacted Wilda Reed and Debbie Mick to see if they would cosign with the plaintiff so that she could borrow the fifteen hundred dollars down payment. Ultimately she tried two banks but was turned down. “On June 2, 1983, Janice Moore and Larry Moore went to R. Z. Sims Chevrolet-Subaru, Inc., in Hutchinson. The plaintiff tried to void the sale because she was unable to get the down payment. Davies refused, telling her that her trade-in had been sold and the financing contract assigned to the bank. In fact, the plaintiff s trade-in had not been sold even though Davies was under this impression. While there and outside the presence of the plaintiff, Larry Moore arranged to have R. Z. Sims Chevrolet-Subaru, Inc., provide a rim and jack for the 1981 pickup, which Mr. Moore claimed was part of the original deal. No payment was made to R. Z. Sims Chevrolet-Subaru, Inc., for these items and the plaintiff saw the items being put in the pickup just before she drove away. To the date of trial the down payment had not been paid by the plaintiff, nor had the plaintiff paid anything on the financing agreement. “The only evidence at trial concerning the primary use of the 1981 Chevrolet pickup came from the plaintiff. She testified that she took title to the pickup as Janice Moore d/b/a Salebarn Cafe so that she could write off the cost as a business expense. The insurance on the truck was charged to the business and the business paid for gas on numerous occasions. She stated in her testimony the pickup was to be used for business purposes, such as going to the bank and picking up supplies. She further testified that she also used the pickup for personal use, including driving to and from home, and on numerous occasions gas was paid for by her personally or by a member of her family. The only other evidence on this point was a statement on the purchase order (Defendant’s Exhibit C) that the truck was to be principally used for personal reasons. However, it is clear that this form was filled out by R. Z. Sims Chevrolet-Subaru, Inc., in Hutchinson and that the plaintiff did not read this document before she signed it. “Based upon the above facts, I have arrived at the following conclusions: “CONCLUSIONS “2. Under the facts of this case, the sale of the 1981 Chevrolet pickup to the plaintiff did not constitute a door-to-door sale by the defendant as defined under the Kansas Consumer Protection Act for two reasons: “A. Under K.S.A. 50-640 a door-to-door sale involves the sale of consumer property. Consumer property is defined under K.S.A. 50-640 as being property purchased primarily for personal, family or household purpose. The burden of proving that a door-to-door sale exists and, therefore, consumer property is involved falls on the plaintiff. From the evidence presented I am unable to say by a preponderance of the evidence that the 1981 Chevy pickup was purchased by the plaintiff primarily for personal, family or household purpose as opposed to business purpose. “B. Under K.S.A. 50-640 a door-to-door sale does not include a transaction: “ ‘made pursuant to prior negotiations in the course of a visit by the buyer to a retail business establishment having a fixed, permanent location where the property is exhibited or the services are offered for sale on a continuing basis.’ “The evidence in this case clearly shows that on May 25 and 26, 1983, the plaintiff s husband, Larry Moore, contacted R. Z. Sims Chevrolet-Subaru, Inc., at its place of business in Hutchinson, Kansas, with the intent of purchasing a pickup. R. Z. Sims Chevrolet-Subaru, Inc., was led to believe by Mr. Moore that the plaintiff was also involved in the purchase. The evidence further shows that on May 25, 1983, the plaintiff became aware of the transaction and neither protested the purchase [nor] objected to the trade-in of the 1965 Ford pickup in which she had an interest. Furthermore, she initiated the contact with Clark Kent on May 26 and protested when advised that the credit application filed by her husband on both their behalfs had been rejected. At no time did she indicate to R. Z. Sims Chevrolet-Subaru, Inc., that she was acting independently of her husband or objected to her husband’s attempt to purchase the pickup for her. The only logical conclusion the Court can come to based on the plaintiff s actions in this case is that the plaintiff is estopped to deny that her husband was acting as her agent in his dealings with R. Z. Sims Chevrolet-Subaru, Inc.; and, as a result, the initial contract by Larry Moore and R. Z. Sims Chevrolet-Subaru, Inc., and the ultimate sale of the pickup to the plaintiff are all part-of one transaction.” Where the trial court has made findings of fact and conclusions of law, the function of this court on appeal is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. Friedman v. Alliance Ins. Co., 240 Kan. 229, Syl. ¶ 4, 729 P.2d 1160 (1986). We have reviewed the record and find the trial court’s findings of fact are supported by substantial competent evidence. Moore does not seriously challenge the trial court’s findings of fact, but contends they are insufficient to support its conclusions. We do not agree. Kansas Comment 1973 to K.S.A. 50-640 makes it clear that the main target of the statute is the home solicitation sale. In such circumstances, a person may be quietly watching his or her television set, answer the unexpected doorbell, and within thirty minutes have signed up for ten years of dancing lessons. The statute gives the gullible consumer an opportunity to consider and reflect upon such a purchase and cancel the same if desired. Janice Moore’s purchase of the truck simply does not fall into the category of a door-to-door sale. The trial court’s rationale and conclusions in regard thereto are reasonable and cannot be held to be erroneous. Although a somewhat closer point, we cannot say the trial court’s conclusion that this was not a consumer sale is not supported by its findings. We conclude this issue is without merit. The judgment against defendant R. Z. Sims Chevrolet-Subaru, Inc., and Charles L. (Clark) Kent arising from the jury trial is reversed; the judgment in favor of counterclaimant R. Z. Sims Chevrolet-Subaru, Inc., arising from the bench trial is affirmed. Holmes and Herd, JJ., not participating.	[ -48, -2, -8, -116, 10, 98, 42, 26, 54, -93, 117, -45, -83, -54, 21, 121, 126, 63, 85, 104, -11, -77, 7, -62, 82, -77, -15, -51, -79, -37, -28, -12, 76, 48, -118, -123, -90, -120, -123, 94, -50, 6, -103, 96, -7, 70, 52, 43, 16, 79, 113, -122, -94, 46, 16, 70, 41, 40, -85, 33, -32, -79, -53, -107, 127, 22, -93, 36, -70, 33, -8, 30, -104, -80, 56, -24, 114, -90, -122, -12, 107, -119, 8, 36, 98, 34, 17, -53, -4, -72, 14, -5, 15, -90, -16, 88, 8, 97, -73, -99, 125, 18, 10, -4, -2, 93, 31, 108, 15, -53, 22, -127, 69, 113, -100, 10, -17, -121, 50, 113, -49, -26, 93, 86, 114, -101, 14, -76 ]
On October 27, 2006, this court suspended the imposition of a disciplinary sanction against the respondent for 2 years. See In re Brunton, 282 Kan. 423, 144 P.3d 606 (2006). This court ordered that the respondent comply with certain conditions. The respondent has submitted a letter to the Clerk of the Appellate Courts in which he stated that he had complied with the conditions as set out by the court in its opinion. The respondent submitted documentation to the Disciplinary Administrator’s office in which he verified his compliance with the conditions imposed by the court. The Disciplinary Administrator’s office recommends that the respondent be released from the conditions imposed by this court. It Is Therefore Ordered that the respondent be released from the conditions set out in this court’s opinion dated October 27, 2006. It Is Further Ordered that this order shall be published in the Kansas Reports. By Order of the Court this 10th day of November, 2009.	[ -76, -24, -107, -99, 42, 97, 51, -76, 67, -109, 103, 82, -49, -46, 4, 107, 85, 41, 85, 121, -55, -74, 119, -47, 70, -13, -16, 85, 59, 111, 116, -75, 75, 48, -118, -75, -122, -54, 85, 92, -114, 3, 8, -28, 81, -126, 34, 123, -110, 11, 49, 15, -29, 46, 88, -41, 104, 124, -23, 101, 65, -47, -101, 5, -113, 23, -93, 5, 20, 7, 84, 47, -104, 57, 0, -24, 51, 54, -126, 116, 79, -23, -88, 70, 98, 35, 13, -60, -68, -88, 46, 58, -99, 102, -112, 80, 43, 8, -108, -67, 86, 22, 33, 126, 102, 5, 29, 36, 14, -50, -112, -111, 14, 52, -38, 3, -17, -95, 48, 21, -116, -10, 92, -45, 50, -101, -90, -70 ]
Per Curiam: Two complaints filed by the office of the disciplinary administrator against Harold V. Matney, Jr., of Ottawa, an attorney admitted to the practice of law in Kansas, have been consolidated for purposes of these original proceedings in discipline. The two complaints, although filed at different times, were interrelated and therefore were heard by a panel of the Kansas Hoard for Discipline of Attorneys on the same date. Complaint 2671 was filed May 2, 1984, and will be referred to as the cemetery complaint. Complaint 2914 was filed September 12, 1985, and will be referred to as the Rickey trust complaint. As respondent’s brief asserts the same issues as to both complaints, we will summarize each complaint and the panel findings before turning to the issues raised by respondent. Complaint #2671 — The Cemetery Complaint The events which led to the cemetery complaint began in 1977 when respondent purchased six cemetery corporations. After the purchase, respondent was the sole shareholder and served as president and treasurer of each of the six cemetery corporations. Each cemetery corporation was required by K.S.A. 1986 Supp. 17-1311 to maintain a permanent maintenance fund in a trust company, bank, or savings and loan association as specified in the statute. The fund is created by a statutorily required 15% deposit into the fund every time a cemetery sells a lot. The principal of the fund may not be used except for statutorily allowed investments. The income produced by the fund is to be used only to maintain the cemetery. Prior to respondent’s purchase of the cemetery corporations, the six funds were managed by the trust departments of two banks. Following his acquisition of the cemetery corporations, the respondent assumed control of the six permanent maintenance funds, which contained in excess of $200,000. By December 19, 1978, respondent had transferred $210,541.53 of the permanent maintenance funds to himself in his capacity as the new trustee of the funds. An investigation of bank documents proved the respondent had converted most, if not all, of the permanent maintenance funds to his personal use. In November of 1980, the attorney general of Kansas commenced litigation against the respondent. The attorney general alleged that the respondent liquidated the permanent maintenance funds in the six cemetery corporations that respondent controlled. The case was eventually settled when the respondent deposited $206,000 in trust with the Indian Springs Bank at Kansas City. Respondent borrowed the $206,000 in his individual capacity from the Indian Springs Bank. In the course of the litigation commenced by the attorney general, the respondent answered interrogatories and was deposed. In the interrogatories respondent certified therein to the truth of his answers. Respondent gave his answers to deposition questions under oath. In his depositions and answers to interrogatories, the respondent represented that $186,000 of the permanent maintenance funds was invested in two real estate ventures. One involved a residence in Kansas City, Kansas, allegedly purchased from Helen B. Rickey for $80,000. The second was several parcels of land in Wyandotte County which the respondent represented was an investment of $100,000 in property owned by his uncle, John J. Shockey. An additional $6,000 was represented to be invested in improvements in the properties. After obtaining ownership of the cemetery corporations, respondent had the obligation, pursuant to K.S.A. 17-1312a(a), to file annual reports with the Kansas Secretary of State. Respondent failed to do so in 1978 and 1979. The 1980 report was filed only after demand was made by the secretary of state. In the annual reports filed for 1980 and 1981, respondent certified that the permanent maintenance funds held valid real estate mortgages totaling $186,000. Apparently these mortgages referred to the Rickey and Shockey properties. As a justification for his diversion of the permanent mainte nance funds, the respondent contended at the hearing before the panel that he had expended his own personal funds for the payment of cemetery expenses in an amount of some $325,000.00. However, K.S.A. 1986 Supp. 17-1311 provides that only the income from the funds may be expended for maintenance. No satisfactory proof of such expenditures appears in the record and no assertion of any such expenditures was made in the litigation filed by the attorney general. There was no evidence presented at any time of any payment of $80,000 to Helen B. Rickey or to her trust, and no evidence showing the cemetery maintenance funds owned any real property or any real property mortgages. After making detailed findings of fact, the panel of the Board for Discipline of Attorneys concluded: “1. That respondent violated DR 1-102(A)(4) by engaging in conduct involving dishonesty, fraud, deceit and misrepresentations on four occasions: a) By answers to interrogatories nine and ten to Complaint #4 (2671) wherein respondent represented under oath that a portion of the Cemetery Permanent Maintenance Funds turned over to respondent, as trustee, and withdrawn by him from the trust accounts, had been used to purchase the Helen B. Rickey real estate. b) By deposition answers, under oath, as outlined in finding of fact Number 17, above, wherein respondent repeatedly represented that $80,000 belonging to the six Cemetery Permanent Maintenance Trust Funds had been withdrawn by respondent to purchase the Helen B. Rickey real estate for the benefit of the cemetery trust funds. c) By his testimony, under oath, before this panel when respondent claimed: as to 1(b), above, that what he meant by his answers to interrogatories and deposition questions as outlined in findings of fact Numbers 16 and 17, above, was that he had some future obligation to pay $80,000 for the Helen B. Rickey real estate because respondent construed some unnamed Kansas law to mean that he had abandoned some cemetery assets. d) By filing annual reports with the Kansas Secretary of State, as set out in number 21, above, which respondent knew or should have known were false. 2. That respondent violated DR l-102(a)(3) and (6) by converting money belonging to the permanent maintenance trust funds belonging to the six cemetery corporations to respondent’s personal use.” Complaint #2914 — The Rickey Trust Complaint Complaint #2914 filed against the respondent involved the Rickey trust referred to earlier. The respondent was an acquaintance of a Kenneth Rickey. Mr. Rickey’s mother, Helen B. Rickey, was an elderly woman afflicted with Alzheimer’s disease. Respondent and Mr. Rickey discussed Mrs. Rickey’s legal situation in 1980. The respondent suggested that a trust was a viable way to preserve Mrs. Rickey’s assets. After these discussions, a trust agreement and will were prepared by the respondent. Kenneth Rickey was the sole heir-at-law of his mother and the sole devisee and legatee named in the will. Under the trust agreement, Helen B. Rickey placed her real estate, consisting of her homestead, and cash assets into the trust. The respondent was named trustee of the trust and, therefore, Mrs. Rickey’s real estate was deeded to him as trustee. The real estate deeded to respondent is the same real property in which respondent claimed he invested $80,000 of the cemetery permanent maintenance funds. Mrs. Rickey made provisions for the early termination of a certificate of deposit she held so that approximately $40,000 in cash assets could be transferred to the respondent as her trustee. As a result of the early termination of the certificate of deposit, respondent received $39,482.97 in funds. This transfer of funds occurred around October 29,1980. Bank records obtained during the investigation showed the following disposition of the $39,482.97: 1) $25,000 deposited into Harold Matney savings account on October 29, 1980; 2) $14,382.97 deposited in Harold Matney trust account on October 29, 1980; 3) $100 cash to respondent on October 29, 1980. Prior to the withdrawal of the Rickey funds from the certificate of deposit, they had been earning 10.484%. Ken Rickey testified that respondent told him and his mother that the respondent could invest the Rickey funds in a “Jumbo CD” which would provide a rate of return two points over current money market rates and at least 2% better than the certificate of deposit rate. No evidence was presented at the disciplinary hearing indicating respondent ever deposited the Rickey funds anywhere except in respondent’s own accounts. During depositions in the cemetery permanent maintenance fund litigation, respondent testified the Rickey house was rented for $350 or $450 a month. It was never rented, as Mrs. Rickey and/or her son continued to live there. Following the death of Mrs. Rickey, Kenneth Rickey retained other counsel and, after repeated demands, the respondent returned $38,667.64 to Kenneth Rickey and reconveyed the Kansas City, Kansas, real estate to Mr. Rickey; the Rickey trust was terminated. In return, Mr. Rickey released respondent from his duties as trustee and agreed not to file suit for damages against respondent individually or in his capacity as trustee. Again the hearing panel made detailed findings of fact, found numerous violations of the Code of Professional Responsibility, and concluded: “1. That respondent violated DR 1-102(A)(4) by engaging in conduct involving dishonesty, fraud, deceit and misrepresentations on three occasions: a) By answers to interrogatories nine and ten to Complaint #4 (2671) wherein respondent attempted under oath to represent that a portion of the Cemetery Permanent Maintenance Funds turned over to respondent, as trustee, and withdrawn by him from the trust accounts, had been used to purchase the Helen B. Rickey real estate. b) By deposition answers, under oath, as outlined in finding of fact Number 21, above, wherein respondent repeatedly represented that $80,000 belonging to the six Cemetery Permanent Maintenance Trust Funds had been withdrawn by respondent to purchase the Helen B. Rickey real estate for the benefit of the cemetery trust funds. c) By deposition answers, under oath, as outlined in finding of fact Number 24, above, wherein respondent twice testified he had rented the Helen B. Rickey house, as trustee of the six Cemetery Permanent Maintenance Funds, for a monthly rent of $350.00 triple net and later for a rental of either $350.00 or $450.00 per month in order to establish, falsely, that the cemetery trust funds were receiving income from the $80,000 investment. d) By his testimony, under oath, before this panel when respondent claimed: (i) As to 1(c), above, that Kenneth Rickey was paying monthly rental to respondent as trustee by caring for his mother; and (ii) as to 1(b), above, that what he meant by his answers to interrogatories and deposition questions as outlined in findings of fact Numbers 20 and 21, above, was that he had some future obligation to pay $80,000 for the Helen B. Rickey real estate because respondent construed some unnamed Kansas law to mean that he had abandoned some cemetery assets. 2. That respondent violated DR 6-101(A)(2) by handling a legal matter without preparation adequate in the circumstances, to-wit: incompetently preparing the Helen B. Rickey Trust as outlined in finding of fact Number 7, above. 3. That respondent violated DR 1-102(A)(3) and (6) by converting money belonging to the Helen B. Rickey Trust to respondent’s personal use as set forth in finding of fact 15, above.” The panel recommended indefinite suspension in each report. Respondent filed exceptions to both panel reports, briefs were filed, and the issues argued before this court, all as provided by Supreme Court Rules. We now turn to the issues raised by the respondent. The respondent first asserts that the hearing panel violated his right to due process of law by finding him guilty of violations which were not charged in the complaint against him. In the Rickey trust complaint, the hearing panel found that the Helen B. Rickey trust agreement, prepared by respondent, was legally insufficient in the following aspects: No income beneficiary or remainderman was named; the trust terminated either 21 years after the date of death of Kenneth Rickey, or 15 years after the death of Helen B. Rickey; the heart of the trust agreement was a photocopy of an irrevocable life insurance trust; and there was no life insurance on the life of Helen B. Rickey. The hearing panel also found that had the trust agreement been properly drafted there would have been no need for a will or for the probate thereof. The hearing panel stated in its conclusions of law that the “respondent violated DR 6-101(A)(2) by handling a legal matter without preparation adequate in the circumstances, to-wit: incompetently preparing the Helen B. Rickey Trust.” The respondent argues that the complaint does not allege the trust document was drafted incompetently nor does it contain allegations concerning the probating of the Rickey will. Respondent argues that a reading of the complaint indicates that the conduct with which the respondent is charged is conversion of funds and deliberate misstatement of facts under oath. He complains that he had no opportunity to offer any defense concerning the contents of the trust document or the necessity of probate proceedings. Supreme Court Rule 211(b) (235 Kan. cxxviii) requires the formal complaint in a disciplinary proceeding to be sufficiently clear and specific to inform the respondent of the alleged misconduct. The case of State v. Caenen, 235 Kan. 451, 681 P.2d 639 (1984), discusses the applicability of the due process clause to a disciplinary proceeding since the decision of In re Ruffalo, 390 U.S. 544, 20 L. Ed. 2d 117, 88 S. Ct. 1222, reh. denied 391 U.S. 961 (1968), which held that a lawyer charged with misconduct in lawyer disciplinary proceedings is entitled to procedural due process, and that due process includes notice of the nature of the charges sufficient to inform and provide a meaningful opportunity for explanation and defense. In cases subsequent to the Ruffalo decision, this court has ruled that it is not necessary for the board to notify the respondent of specific acts of misconduct as long as the complaint sets out the basic factual situation from which the charges might result, thereby putting the respondent on notice as to what ethical violations may arise therefrom. See 235 Kan. at 459 and cases cited therein. Here, the allegations in the Rickey trust complaint pertain to the way the respondent handled the Helen B. Rickey trust property. The complaint also states the respondent prepared the trust agreement and the will. While a liberal interpretation of the complaint would indicate that it does impart sufficient notice that the document itself could be examined for any ethical misconduct on the part of the respondent, we conclude the respondent’s arguments have some merit. Therefore, we will ignore the panel’s findings which pertain to respondent’s inadequacy in preparing the Helen B. Rickey trust agreement and its conclusion number two wherein the panel finds the respondent violated DR 6-101(A)(2) (235 Kan. cxlvii). Second, respondent complains that, in both reports of the hearing panel, the panel found the respondent violated DR 1-102(A)(4) (235 Kan. cxxxvii) based upon his testimony before the panel. Respondent does not dispute the panel’s authority to disbelieve his testimony, but he does dispute the panel’s authority to make a finding of ethical violation based on that testimony. We have previously set forth the panel’s conclusions as to each complaint. The allegations in the formal complaints are extensive and the panel’s findings of misconduct, as stated above, are tied into those allegations. While it is obvious that the complaints do not, and could not, allege the factual situation of the respondent testifying falsely before the hearing panel, we are of the opinion that when the evidence is clear and convincing that a respondent in a disciplinary proceeding has not been truthful, the panel may consider such fact and find the respondent has violated the Code of Professional Responsibility by such testimony during the proceeding. Due process of law does not give a respondent in a disciplinary proceeding the right to testify falsely or to make misrepresentations during the proceedings, and a finding of ethical violation, based upon such evidence, does not violate the respondent’s rights to due process of law. Here, the evidence is overwhelming that respondent knowingly misrepresented matters to the panel. The panel was justified in so finding. We find no merit in this argument of the respondent. The next issue the respondent raises is that the disciplinary administrator’s delay in filing formal complaints and in bringing them to hearing prejudiced the respondent’s ability to defend himself in violation of his rights to due process of law and in violation of this court’s rules pertaining to the discipline of attorneys. The Helen B. Rickey trust agreement was executed in 1980. It was not until after the death of Mrs. Rickey on January 19, 1982, and the retention of new counsel by Kenneth Rickey, that respondent’s handling of the trust came into question. The initial complaint filed with the disciplinary administrator was received from Mrs. Rickey’s new counsel on March 8, 1983. An initial investigation was then undertaken prior to submission to the review committee. Supreme Court Rule 210(b) (235 Kan. cxxviii). The matter was submitted to the review committee in February 1984. A formal complaint by the disciplinary administrator was filed on May 2,1984, and the hearing held January 27, 1986. Respondent purchased the six cemetery corporations in 1977. The attorney general commenced litigation against the respondent in November 1980. The initial complaint to the disciplinary administrator was filed by two members of the attorney general’s staff in June 1982 and was submitted to a review committee on June 21, 1984. A formal complaint against the respondent was filed September 12, 1985, and the hearing held January 27, 1986. Supreme Court Rule 210 requires all investigations to be conducted by or under the supervision of the disciplinary administrator. Rule 210(c) requires the disciplinary administrator to make recommendations to the review committee upon the conclusion of a preliminary investigation. Respondent argues the rules were violated because final investigation was not commenced until after the finding of probable cause by the review committee. The rules do not require an investigation to be performed by a certain time period nor do they require that the entire investigation be completed prior to submission to the review committee. It is the intent of the rules that when a complaint is received by the disciplinary administrator that a preliminary investigation be conducted before submission of the complaint to the review committee, which then determines if there is probable cause to believe an ethical violation has occurred. It is only after such a finding that a full investigation is undertaken in preparation for an adversary proceeding before a hearing panel. With cooperation from a respondent, many complaints are disposed of prior to or at the review committee stage as being without merit. While it would be ideal if investigations could be short in length, such is not always the case. Additionally, the respondent added to the delay of the investigations herein by not cooperating, as will be discussed later. This court has recognized in previous disciplinary cases that although no statute of limitations is applicable to disciplinary actions, charges may become so stale that it would become inequitable to act upon them. In re Ratner, 194 Kan. 362, 373, 399 P.2d 865 (1965), In re Elliott, 73 Kan. 151, Syl. ¶ 3, 84 Pac. 750 (1906). While in some instances a delay in the proceedings or the commencement thereof may require the dismissal of disciplinary actions, there must be a showing of prejudice to the party asserting such delay as a defense. The primary purpose of professional disciplinary proceedings is to protect the public and that purpose would not be met by dismissing, due to delay, a case against an attorney whose conduct disqualified him from practicing law. See Annot., 93 A.L.R.3d 1057. The disciplinary administrator’s office called upon private attorneys to investigate and trace the financial transactions which occurred regarding the money from the permanent maintenance funds and the Rickey trust. Supreme Court Rule 210(b). Numerous requests were made by the attorney investigators for the respondent to produce documents. The respondent failed to cooperate and the disciplinary administrator’s office eventually was forced to hire a professional investigator to obtain the necessary information and documents. By that time, two banks where respondent had accounts had closed. Additionally, the investigator examined bank documents from seven different banks, which was extremely time-consuming. While the respondent asserts that three witnesses have died (his secretary who dealt with the cemetery companies, the attorney for the secretary of state who conducted an investigation of the cemetery reports, and the president of a bank who dealt with the respondent on these matters), he has made no showing of how their lost testimony has prejudiced his case. If respondent had cooperated in the initial investigations, the desired evidence and testimony, if any, might have been available to respondent. The delays herein were caused primarily by respondent’s own actions. The respondent’s assertion that delay in the proceedings violated his due process rights lacks merit. Finally, the respondent asserts the findings and recommendations of the panel are not supported by the evidence. Respondent asserts the evidence presented by the professional investigator, James Miller, a former F.B.I. agent with years of experience in investigating white collar crime, does not reach the clear and convincing standard required by Supreme Court Rule 211(f). This Court has addressed the issue of the weight to be given a panel report and has likened the functions of a hearing panel and its findings of fact to that of a trial court. “The role of the Board is similar to that of a commissioner appointed by this court to conduct hearings and to make a report of his findings, conclusions, and recommendations. Although such a report is advisory only, it will be given the same dignity as a special verdict by a jury, or the findings of a trial court, and will be adopted where amply sustained by the evidence, or where it is not against the clear weight of the evidence, or where the evidence consisted of sharply conflicting testimony.” State v. Zeigler, 217 Kan. 748, 755, 538 P.2d 643 (1975). The record in this case consists of at least 57 exhibits submitted by the disciplinary administrator, 21 exhibits submitted by the respondent and a transcript of 925 pages of testimony. Many of the exhibits are financial records and consist of multiple pages. The hearing before the panel took four days. The panel set forth extensive and detailed findings of fact based on the evidence presented at the hearing. We have carefully reviewed the extensive record in this case and conclude the panel’s factual findings and its conclusions of law are supported by clear and convincing evidence with the exception of the violation of DR 6-101(A)(2). A majority of the members of this court concur in the recommendations of the panel that respondent be indefinitely suspended, while a minority would disbar the respondent. It is Therefore by the Court Ordered that Harold V. Matney, Jr., be and he is hereby indefinitely suspended from the practice of law in the State of Kansas. It is Further Ordered that this order shall be published in the official Kansas Reports and that the costs herein be assessed to the respondent. Effective this 17th day of July, 1987.	[ -80, 108, -87, -36, 8, -30, 58, 58, 113, -13, 116, 87, -23, -50, 25, 47, -14, 45, 89, 96, -57, -74, 127, 106, 102, -5, -7, -51, -94, 77, -28, -57, 73, 48, 10, -107, -58, -62, -59, -34, -114, 0, -101, -32, -35, 64, 52, -3, 87, 15, 85, 46, -69, 40, 17, 107, 73, 44, -5, -85, 81, -95, -87, -123, -1, 7, 32, -124, -112, -113, -48, 43, -112, 117, 48, -23, 33, -78, 6, 116, 7, -87, -120, 98, 98, 19, 33, -89, -80, -120, 14, -105, -113, -89, -77, 73, 96, -119, -106, -106, 80, 16, 39, -4, -28, 85, 25, 44, 1, -50, -42, -127, 93, -4, -114, -101, -17, -121, 52, 81, -116, -26, 95, -41, 50, 19, -114, -111 ]
The opinion of the court was delivered by Miller, J. This is a medical malpractice action. Robert Smelko III, a three-month-old child, sustained second- and third-degree burns from a heating pad on which he was placed during surgery for repair of an inguinal hernia. Plaintiffs are the minor child (Bobby) and his parents, Robert Smelko II and Rebecca Smelko. Defendants are E. Holmes Brinton, M.D., the surgeon; Celeste Genilo, M.D., the anesthesiologist; and Minor Surgery Center of Wichita, Inc., where the surgery was performed. Shortly before trial, defendants admitted liability and the case went to trial before a jury in Sedgwick County District Court on the issue of damages. The jury returned a verdict for the minor plaintiff in the sum of $400,000 and for the parents for $2,250. The defendants and the parents appeal. Defendants contend that the trial court erred in receiving into evidence the heating pad which caused the burns and an enlargement of the warning attached to the pad, in permitting the parents to recover for losses incidental to their son’s injury, and in denying defendants’ motion for a new trial; that plaintiffs’ closing argument was improper and prejudicial; and that the verdict was excessive and a product of passion and prejudice. The parents, by cross-appeal, contend that the trial court erred in holding that they could not recover for their emotional distress. The facts are not disputed. In January 1984, when Bobby Smelko was about three months old, the family doctor, Cathy Woodring, M.D., diagnosed a right inguinal hernia and recommended that it be surgically corrected. She referred the Smelkos to a surgeon, E. Holmes Brinton, M.D. Dr. Brinton confirmed Dr. Woodring’s diagnosis. Surgery was scheduled for January 17, 1984, at the Minor Surgery Center in Wichita. Bobby was admitted to the Minor Surgery Center at 6:26 a.m. Dr. Brinton arrived at 7:15. The anesthesia was started at about 7:40 and continued until 8:50. Bobby’s parents were in the waiting room during the surgery. When the surgery was completed, Dr. Brinton informed the parents that it had been successful. At about 9:10 a.m., the parents were informed that Bobby was awake in the recovery room and they could go and see him. They heard Bobby screaming as soon as they entered the recovery room. He continued to scream despite his mother’s continuous efforts to calm him. The nurses told the parents that crying was normal after surgery and that they could take him home. Mrs. Smelko testified that Bobby wasn’t just crying, he was screaming. Bobby screamed all the way home and continued to scream at home despite repeated efforts to calm him. Finally, even though his diaper was dry, his mother decided to change it, thinking it may have been too tight over the stitches. When she removed the diaper, she discovered large blisters on his buttocks which were discharging blood and water. The parents immediately called the Minor Surgery Center, and were told to contact Dr. Brinton. At about 1:30 or 2:00 p.m., Dr. Brinton examined Bobby, and instructed the parents to take him to Wesley Medical Center. Bobby was admitted to the hospital about 3:00 p.m., where he was examined and treated by Dr. Tobin, a resident physician. Bobby had deep second- and third-degree burns covering 75% of the left and 90% of the right buttocks. The burns were apparently caused by a heating pad which was placed under Bobby during the hernia surgery to keep him warm. The Center owned two heating pads, which were identical, and one of the two was used during the surgery. The pad was set up by the circulating nurse in the operating room at the request of the anesthesiologist, Dr. Celeste Genilo. The nurse who diapered Bobby in the operating room after the surgery didn’t notice anything unusual about his buttocks. The third-degree burns, however, were coagulation type burns. The prolonged exposure to the heat caused clotting in the veins and arteries so that oxygen could not pass. The cells then died over a period of time. The death of the cells would not be noticeable for three to four hours after exposure to the heat. After Bobby was admitted to the hospital, Dr. Tobin ordered six milligrams of Demerol to be administered every three hours as needed for pain; Betadine soaks three to four times daily, or with each diaper change, whichever was more frequent; and application of Silvadine ointment following the Betadine soaks. Demerol is a narcotic pain reliever, and Betadine is an iodine solution. On January 23, Norman K. Pullman, M.D., a plastic surgeon, was brought into the case. He determined that, because most of the burns were third-degree burns, they would require grafting at a later date. The graft was postponed to allow the second-degree burns to begin to heal. Dr. Pullman recommended that the burned area be left uncovered to promote healing and decrease the risk of infection, and he recommended continuation of the Betadine baths. Around January 25, a less potent drug, Phenergan, a sedative, was substituted for the Demerol for pain management. The skin graft was performed on February 1, and Dr. Pullman termed it a success. The top layer and part of the second layer of the skin from Bobby’s back, adjacent to the burn area, were utilized in the graft. The Betadine and ointment treatments continued after the graft, and Phenergan and Tylenol were prescribed for pain. Bobby was finally released from the hospital on February 23, 1984. Bobby’s mother stayed with him at the hospital throughout his stay, going home only about ten times during the five-week period. Bobby’s father stayed as much as his work would permit, approximately fourteen hours every day. The parents administered the Betadine baths whenever they were there. His mother testified that Bobby screamed during each bath and would try “to get away” whenever he saw the green tub containing the Betadine solution. Dr. Pullman testified that burns are painful injuries and verified that even a three-month-old infant is capable of feeling pain. He also testified that second-degree burns are particularly painful because nerve endings are exposed; the more serious third-degree burns are less painful because the nerve endings have been destroyed. Betadine swabs were still required after Bobby’s release from the hospital and he could not wear a diaper for the next month. Even after he could wear diapers, Mrs. Smelko had to change him within ten to fifteen minutes after each urination or bowel movement, or his buttocks would get raw and red. This continued for over a year. She also continued to apply A & D Ointment to the area to keep the skin from drying out, and was still using it at the time of trial. Dr. Pullman continued to see Bobby until October 17, 1985, when he determined that the grafts were soft and pliable, and nothing further could be done. The scars are permanent, and will grow proportionately to Bobby’s body. The grafted skin is less resistant to normal wear and tear than normal tissue; there is no oil or sweat secretion, and it will be dryer and less elastic than normal tissue. Given the location, the grafts will cause no specific limitations on Bobby’s activities. Defendants first contend that the trial court erred in admitting evidence on the issue of defendants’ liability, since the defendants had admitted liability and the case was to be tried solely on the issue of damages. Specifically, they contend that the trial court erred in admitting into evidence the heating pad which caused Bobby’s burns and an enlargement of a warning found on the heating pad. The warning said: “GENUINE WET PROOF THREE-HEAT ELECTRIC HEATING PAD WARNING BURNS WILL RESULT FROM IMPROPER USE NEVER USE PAD WITHOUT COVER IN PLACE CAREFULLY EXAMINE BEFORE EACH USE DISCARD THE PAD IF IT SHOWS ANY SIGN OF DETERIORATION (SUCH AS CHECKING, BLISTERING, OR CRACKING). FOLLOW INSTRUCTIONS ON BOX OR PACKED WITH PAD, CAUTION DO NOT USE ON AN INFANT, INVALID, OR A SLEEPING, OR UNCONSCIOUS PERSON. CHECK SKIN UNDER PAD FREQUENTLY TO AVOID BURNING. AVOID SITTING ON OR CRUSHING THIS PAD. TEMPERATURES SUFFICIENTLY HIGH TO CAUSE BURNS MAY OCCUR REGARDLESS OF CONTROL SETTING.” Prior to trial, defendants admitted liability and sought to exclude from evidence the heating pad and an enlargement of the warning as irrelevant to the issue of damages. The trial judge denied this motion, finding: “I do believe that is has some materiality and relevance in demonstrating the extent and nature of the injury in terms of what a pad like this is inclined to do, and, therefore, the warning, I think, is consistent with that and a jury knowing that. “Even though you have admitted liability, the very nature of how the injury occurred is inherent in the use of this particular pad and which goes to the extent and nature of the injury that can or has resulted. I think it is a part of it, and so I’m going to overrule your objection on that, too.” Defendants argue on appeal that the exhibits should have been excluded as irrelevant to the issue of damages. K.S.A. 60-401(b) defines relevant evidence as “evidence having any tendency in reason to prove any material fact.” The determination of relevancy is “a matter of logic and experience, not a matter of law.” McGuire v. Sifers, 235 Kan. 368, 371, 681 P.2d 1025 (1984). The rules pertaining to a determination of relevancy-are stated in State v. Smith, 225 Kan. 796, 801, 594 P.2d 218 (1979): “Our court recently defined relevant evidence in State v. Nicholson, 225 Kan. 418, 420, 590 P.2d 1069 (1979), and cases cited therein. Rules from the cases provide: (1) relevancy does not necessarily mean the evidence bears directly on the case; (2) admissibility of the evidence, rests largely within the discretion of the trial court; and (3) if the probative value of relevant evidence is outweighed by the danger the jury might be unduly prejudiced, it should be excluded.” Defendants rely on various authorities from other jurisdictions, most of which consist of rulings that evidence relevant only to the issue of liability and not relevant to damages is inadmissible when liability has been admitted. See, e.g., Jones v. Carvell, 641 P.2d 105 (Utah 1982); Snyder v. General Electric Co., 47 Wash. 2d 60, 287 P.2d 108 (1955). This rule would allow the introduction of evidence which, although relevant to liability, is also relevant to the extent of damages. While the defendants admitted liability, the admission contained no explanation or admission regarding how the injuries occurred. Although plaintiffs were relieved of establishing liability, we think the better rule is to permit a plaintiff to introduce reasonable evidence to show how the injury was sustained. The warning on the heating pad bears directly on the issue in the case — the nature and extent of the child’s injuries. Dr. Pullman, the plastic surgeon, testified that he concluded the burns were caused by the heating pad. The warning on the heating pad served to corroborate his theory of the cause of the burns, and the source of the burns seems pertinent to the jury’s assessment of the nature and extent of the injuries. Although the cause was described by Dr. Pullman, the warning would be helpful to the jury, which might well not realize that such an innocuous and commonplace device could cause such severe injuries. Here, two heating pads were admitted into evidence. One of the pads had been used during the surgery and caused the injury. Attached to each heating pad was the warning of which defendants now complain, although the warnings were faded and difficult to read. The blow-up simply provided the jury with an easily readable enlargement of the warning. Under the circumstances, we conclude that the pads and the warning thereon are relevant to both liability and damages. The trial court did not commit prejudicial error by admitting the heating pads or the enlargement of the warning into evidence. Defendants argue that plaintiffs’ closing argument was improper and prejudicial, and denied defendants a right to a fair trial. They complain of two lines of commentary by plaintiffs’ counsel during the rebuttal phase of the closing argument. Plaintiffs’ counsel explained that the jury should separate counsel from the parties they represent — both plaintiffs’ counsel and defendants’ counsel. In response to defense counsel’s statement during closing argument that Robert Smelko II consulted a lawyer shortly after the injury occurred, plaintiffs’ counsel said, “He went to a lawyer fairly soon afterwards, and I think you can see why.” These arguments were fairly responsive to defendants’ closing argument, and do not constitute prejudicial or reversible error. Finally, during the voir dire, defense counsel asked the jurors if they could recall anything that happened in their lifetime before the age of one. During closing argument, defendants’ counsel argued that Bobby would not remember his injuries and that, arguably, pain not remembered was pain not suffered. In response, during the rebuttal argument, plaintiffs’ counsel said, in effect, that Bobby was the one person involved who could not tell the jury about what happened to him. If Bobby could speak, he would tell the jurors of awakening from the surgery with searing pain he could not understand and of the nightmare that followed. There was considerable evidence that Bobby was in pain immediately following the surgery. He was given regular doses of a powerful pain medication for an extended period of time. His mother testified regarding his screaming and his apparent fear of the Betadine baths. Dr. Pullman testified regarding the painfulness of burns and the capacity of a three-month-old infant to feel pain. Under the circumstances, we conclude that plaintiffs’ rebuttal argument was not improper, and the trial court did not commit reversible error by denying a new trial on the basis of comments made by plaintiffs’ counsel during closing argument. Defendants contend that the trial court erred in permitting the parents to recover for losses incidental to their son’s injury. Defendants do not challenge the amount of that award or the sufficiency of the evidence to support it. The parents, in the petition filed in this case, sought to recover damages for their emotional distress, and for medical expenses and other special damages. The pretrial order listed two of the issues as: “(d) What is the nature and extent of plaintiff s alleged injuries and damages? “(e) Are plaintiffs entitled to recover from defendants under any theory of liability, and, if so, what amount of damages are they entitled to recover?” At trial, there was extensive evidence of the amount of time Rebecca Smelko spent at the hospital with her son, of the ten trips she made between the hospital and home during his hospitalization, and of the trips she made with Bobby to the hospital or to the physician’s office following his discharge from the hospital. In the petition, the parents sought damages for their emotional distress. Defendants filed a motion in limine seeking to suppress introduction of evidence as to the parents’ emotional distress. The trial court sustained that motion and dismissed the parents’ claim for emotional distress damages. Both the original petition and the pretrial order, however, appear to encompass the parents’ claim for incidental damages arising out of their son’s injuries. That issue was not taken out of the lawsuit by the trial court’s ruling on the parents’ claim for emotional distress. The trial court submitted a separate verdict for the damages sustained by the parents and the jury returned a verdict for $2,250 on their behalf. Defendants argue that this element of damages was not included in the pretrial order, and thus argue that it was error for the trial court to submit that issue to the jury. From a reading of the petition, the pretrial order, and the record in this case, we conclude that the matter was properly covered by the pretrial order and properly submitted to the jury for determination. Defendants challenge the verdict — the jury award of $400,000 to Bobby — as excessive, and the product of passion and prejudice. Under the instructions given by the trial court, the jury could award Bobby: “such amount of money as will reasonably compensate him for his injuries and losses resulting from the occurrence in question including any of the following shown by the evidence: “(a) Pain, suffering, disabilities, scarring or disfigurement, and any accompanying mental anguish suffered by plaintiff to date and those he is reasonably certain to experience in the future; (b) The reasonable expense of necessary medical care, hospitalization and treatment received, and reasonable expense of necessary medical care, hospitalization and treatment reasonably certain to be needed in the future.” The evidence documented medical expenses to the time of trial at $13,476. Thus, the remainder of the award was for those items, past and future, listed under subparagraph (a) — pain, suffering, disability, scarring or disfigurement, and mental anguish. Defendants claim that this amount, approximately $385,000, is excessive for those claims. We recently stated the appropriate standard of review in Ratterree v. Bartlett, 238 Kan. 11, 22, 707 P.2d 1063 (1985) (quoting Cantrell v. R. D. Werner Co., 226 Kan. 681, 686, 602 P.2d 1326 [1979]): “ ‘Where a charge of excessive verdict is based on passion or prejudice of the jury, but is supported solely by the size of the verdict the trial court will not be reversed for not ordering a new trial, and no remittitur will be ordered unless the amount of the verdict in light of the evidence shocks the conscience of the appellate court.’ ” Defendants claim the verdict is excessive in light of the evidence that there is no indication that future medical treatment will be necessary; there is minimal evidence of psychological or emotional problems; there is no permanent disability; the potential problems with scar tissue and disfigurement are minimal because of the location of the injury; past pain and suffering was not particularly great because third-degree burns are less painful than second-degree burns; and future mental anguish must be confined to some embarrassment when Bobby’s buttocks are exposed, because he will not remember his ordeal. Defendants then cite numerous cases from other jurisdictions, many ten or more years old, in an effort to enlighten this court regarding what an appropriate and excessive verdict might have been in the case at bar. Defendants suggest that $85,000 is adequate. Defendants’ arguments minimize many of the problems. Bobby still complained of pain at the time of trial. His family testified regarding disciplinary problems and Bobby’s fear of others, including his father. While it is true that the scar will not be visible as he will normally be clothed, it may be visible during swimming and other sports activities, and it is on an area of the body exposed during one’s most intimate times. A similar disfigurement of the face would most certainly have been exposed to everyday view; however, we cannot say that because this disfigurement is hidden at most times it is not compensable. Regarding the pain and suffering, there was evidence that Bobby suffered both second- and third-degree burns, and that the second-degree burns are particularly painful because nerve endings are exposed. The photographs of the injuries disclose, to some extent, the extreme seriousness of the burns sustained. The pain suffered during that time must have been excruciating, as described in the evidence. While, as defendants argue, the memory of the events at the age of three months is questionable, there was no evidence that he would not have some kind of memory of what happened to him. It is thus impossible to predict on the basis of the evidence what kind of mental anguish he may sustain in the future. With reference to cases from other jurisdictions where burn or other similar injuries were sustained by children, there are problems with comparing awards from different times and places. We rejected such an approach in evaluating the excessiveness of a jury verdict in McGuire v. Sifers, 235 Kan. 368, 373, 681 P.2d 1025 (1984) (quoting Kirk v. Beachner Construction Co., Inc., 214 Kan. 733, 736-37, 522 P.2d 176 [1974]): “ ‘An examination of the numerous cases challenging the sufficiency, or insufficiency, of a verdict reveals no simple, symmetrical pattern or design. Each case seems to stand on its own facts. We deem it fruitless to attempt a reconciliation of the various amounts which have or have not been held excessive, and we shall undertake no such effort. Perhaps no better explanation can be given for the lack of dollars and cents uniformity in our decisions than is expressed in Domann v. Pence, 183 Kan. 135, 325 P.2d 321: “ ‘ . Pain and suffering have no known dimensions, mathematical or financial. There is no exact relationship between money and physical or mental injury or suffering, and the various factors involved are not capable of proof in dollars and cents. For this very practical reason the only standard for evaluation is such amount as reasonable persons estimate to be fair compensation for the injuries suffered, and the law has entrusted the administration of this criterion to the impartial conscience and judgment of jurors, who may be expected to act reasonably, intelligently and in harmony with the evidence. . . .” (p. 141.) “ ‘The times in which we live are highly inflationary, with constantly climbing prices and a continually shrinking dollar. It is against this sort of a background that we must consider the dictates of conscience.’ ” The trial court, when faced with defendants’ challenge to the verdict as excessive, observed that some, including the trial judge, might have given less; others might have given more. The members of this court have examined the evidence in this case and the verdict does not shock the conscience of the court. We find nothing in the record to indicate that the verdict returned was a result of passion and prejudice. The defendants next contend that the trial court erred in denying defendants’ motion for a new trial. The issues raised in support of this claim have already been discussed in this opinion. We hold that the trial court did not abuse its discretion in overruling the motion for a new trial. By way of cross-appeal, the parents contend that the trial court erred in dismissing their claim for their emotional distress resulting from the injury to their minor. Plaintiffs urge reversal of the trial court ruling in light of holdings from other jurisdictions. They rely primarily on the holding in Dillon v. Legg, 68 Cal. 2d 728, 69 Cal. Rptr. 72, 441 P.2d 912 (1968), and decisions from other jurisdictions which adopted Dillon. We discussed the matter in Schmeck v. City of Shawnee, 231 Kan. 588, 594, 647 P.2d 1263 (1982), where we said: “We hold that a parent has no cause of action for his or her emotional, physical, or other injuries against one who negligently causes injury to an adult child, when the parent is not present at the scene, is not directly injured, and neither witnesses nor perceives the occurrence causing injury to the child.” This rule has equal application where the parents of a minor child claim damages for their emotional distress under like circumstances. Plaintiffs argue that this case should be distinguished from Schmeck in as much as the parents here were just outside the door of the operating room when the tortious conduct occurred. Even if the parents had been in the operating room, it is unlikely they would have realized that the injury was taking place, since it is obvious that neither the physicians nor the nurses there present recognized it. California has rejected a claim that visibility of the results, rather than the visibility of the tortious act, is the essential element. See Jansen v. Children s Hospital Medical Center, 31 Cal. App. 3d 22, 106 Cal. Rptr. 883 (1973), where the court held that the tortious act must be susceptible of understanding observance by the plaintiff. See also Hair v. County of Monterey, 45 Cal. App. 3d 538, 119 Cal. Rptr. 639 (1975), where the mother was in the waiting room during the child’s surgery and the child suffered serious complications after the surgery which were apparently attributable to some malpractice during surgery. Recovery of damages for the parents’ mental distress was denied. We conclude that this case fits within the rule announced in Schmeck, and thus the trial court did not err in dismissing the parents’ claim for emotional distress. The judgment is affirmed. Holmes, J., not participating.	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The opinion of the court was delivered by Price, J.: This is an action by a subcontractor to foreclose a materialman’s lien upon property of defendants. The case has not been tried and is here, on appeal by defendants, from certain rulings as to pleadings hereafter mentioned. In their brief plaintiffs (appellees) concede that the statement of facts as to the contents of the pleadings outlined by defendants (appellants) in their brief is “substantially correct.” We therefore summarize from that statement: In 1957 defendants entered into a contract with one Wayne Line, doing business as Line Supply and Construction, to make certain repairs on a factory building in Cherryvale. On February 21, 1958, the Woods-Ringstaff Lumber Company, of Cherryvale, filed a purported materialman s lien in the office of the clerk of the district court of Montgomery county, claiming a lien upon defendants’ property as a subcontractor who had furnished material to Line, doing business as Line Supply and Construction. Defendants had fully paid Line for all labor and material used on the construction job, such payment having been made prior to the date of filing of the lien affidavit. On October 21,1958, Line filed a petition in bankruptcy in the federal court at Wichita. On November 1, 1958, the Woods-Ringstaff Lumber Company filed its claim against Line, doing business as Line Supply and Construction, in the bankruptcy proceeding. There was never any privity of contract between the lumber company and defendants. On January 19, 1959, Line was discharged in bankruptcy. On February 15, 1959, the Woods-Ringstaff Lumber Company, which was alleged to be a copartnership composed of R. C. Woods, E. E. Woods, O. H. Woods and W. F. Ringstaff, filed this action against defendants seeking recovery in the amount of $3,231.15. Defendants filed an answer to the petition. Plaintiff filed a reply and a demurrer to the answer. It then developed that the partnership had been dissolved prior to the filing of the action by virtue of the death of O. H. Woods. Subsequently, an amended petition was filed by a different Woods-Ringstaff Lumber Company in which it was alleged the partners in the firm were R. C. Woods, E. E. Woods, Muriel Lough Woods and W. F. Ringstaff. Thereafter R. C. Woods, as surviving partner of the second Woods-Ringstaff Lumber Company, filed a petition as an intervening plaintiff alleging that he was the proper person to bring the action. He filed a supplemental petition. Defendants filed answers to the petitions of plaintiffs (the second Woods-Ringstaff Lumber Company) and R. C. Woods (the inter vening plaintiff as surviving partner of the second Woods-Ringstaff Lumber Company). Both plaintiffs (the second Woods-Ringstaff Lumber Company) and R. C. Woods (the intervening plaintiff) filed replies to the answers. These replies contained special demurrers to portions of the answers. Among other things, the answers contained the following defenses: The purported lien statement was not properly itemized; a denial that defendants were indebted to plaintiff intervenor; a denial that such “second” plaintiff or intervenor had or was entitled to any lien on the property of defendants; that Line had been fully paid for all material and labor furnished to defendants; that the lien affidavit was not filed within the statutory time; a denial that the alleged affidavit was a correct statement as to the amount of materials used on defendants’ premises; a denial that Line was the agent of defendants; that the Woods-Ringstaff Lumber Company, by filing its claim for $720.94 against Line in the bankruptcy proceeding and by alleging in that claim that such sum was the amount owed to claimant by Line, had by its actions led a court of competent jurisdiction to adjudge such to be the entire amount owed to claimant by Line, thus rendering the matter res judicata; that the discharge of Line in bankruptcy effected a discharge of defendants; that by asserting a claim in the bankruptcy court for less than the amount now claimed in this action the Woods-Ringstaff Lumber Company was estopped from claiming more than $720.94 from Line or defendants, and that the Woods-Ringstaff Lumber Company received $39.95 through the bankruptcy court on its claim against Line. The answers also contained general denials of the statements and allegations contained in the various petitions. The special demurrers contained in the replies were lodged against the allegations in the answers as to the bankruptcy of Line, and were taken under advisement by the court. Before they were ruled on defendants filed a motion for leave to file amended answers, and plaintiff (the second Woods-Ringstaff Lumber Company) and R. C. Woods (intervening plaintiff as surviving partner) filed a motion to substitute a third WoodsRingstaff Lumber Company, an alleged partnership consisting of E. E. Woods, R. C. Woods and Muriel Woods, as plaintiff, and alleged that such partnership was the owner of the alleged indebtedness of defendants. No amended petition was offered for filing. On June 4, 1960, the court sustained the motion and substituted the third alleged partnership as plaintiff, under the pleadings previously filed, without requiring new pleadings to show the interest of the new partnership in the action. The court further overruled defendants’ motion to file amended answers, despite the fact a new party had been substituted as plaintiff. The court also sustained the special demurrers contained in the replies filed by the second Woods-Ringstaff Lumber Company and R. C. Woods as surviving partner, the intervening plaintiff. Defendants then moved for permission to file amended answers to set forth their claims that the conduct of the first Woods-Ringstaff Lumber Company with respect to the bankruptcy proceeding of Line was fraudulent, such motion being based upon alleged newly discovered evidence. The motion was overruled. Defendants have appealed from various rulings — including the order sustaining the special demurrers to portions of the answers and the order denying their motion for permission to file amended answers. Plaintiffs suggest that some of the rulings complained of are not “final orders” and therefore not subject to review. The point is not well-taken. The ruling on the demurrers is made appealable by statute (G. S. 1949, 60-3302). Defendants also appealed from, and specified as error, the other rulings in question. In a situation such as this, which discloses a highly confused state of the pleadings, we feel that we are not called upon to discuss in detail all of the various contentions made. To do so would of a certainty add nothing to the law on the subject and merely encumber the reports. Pleadings are to be made up and issues joined in the trial court. Defendants’ answers were filed to the petitions of the “second” plaintiff and the intervening plaintiff. Those plaintiffs filed replies containing special demurrers to parts of the answers — which were sustained. The “third” plaintiff has filed no pleadings. Defendants contend they should have been permitted to file amended answers as against the substituted (third) plaintiffs so as to eliminate any possible defects which may have been the ground for the demurrers, and further — to raise the question as to the real party in interest. We believe that under the facts here shown their contention is well-taken and that the court erred in denying defendants the right to amend. G. S. 1949, 60-710, in pertinent part, provides that a defendant may set forth in his answer as many grounds of defense as he may have. G. S. 1949, 60-761, provides that if a demurrer be sustained the adverse party may amend if the defect can be remedied by way of amendment, with or without costs, as the court in its discretion shall direct. G. S. 1949, 60-764, provides that either party may be allowed, on notice, and on such terms as to costs as the court may prescribe, to file a supplemental petition, answer or reply, alleging facts material to the case occurring after the former petition, answer or reply. As the matter now stands, the issues raised by the numerous pleadings and motions are not joined. Under the circumstances, we express no opinion as to the merits of the case with reference to the alleged lien, the bankruptcy proceeding or the special demurrers contained in the replies. The case should be brought to issue so as to enable the parties to proceed to trial. The extent of our holding is that it was error to deny defendants the right to file amended answers — and to that extent the judgment below is reversed.	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The opinion of the court was delivered by Wertz, J.: On September 25, 1946, Mary Lou Robben obtained a decree of divorce from Robert A. Robben in the district court of McPherson county. The court awarded the custody of their minor child, Linda Kay, to the mother, and ordered the father to pay $40 a month as child support. Thereafter, the mother took Linda Kay and moved to Ohio, where they resided until the mother’s death October 80, 1957. At that time and at all times subsequent thereto, the father was a resident of Colorado. After the death of her mother, Linda Kay, then sixteen years of age, returned to Kansas to reside with her uncle, Louis E. Roberts, Jr., who was appointed guardian of Linda Kay’s estate in a proceeding in the probate court of Rarton county on December 24, 1957. On August 12,1959, Louis E. Roberts, Jr. (appellant herein), filed a motion in the original divorce action between Mary Lou and Robert A. Robben in the district court of McPherson county, alleging that he had been appointed guardian of the estate of Linda Kay by the probate court of Rarton county, and that Robert A. Robben was the natural father of the minor child and had failed, since the death of Linda Kay’s mother, to pay any child support for more than a year. He asked for the accrued back payments and that the future child support payments be increased to $100 a month. Robert A. Robben, defendant (appellee), the father of Linda Kay, appeared specially and filed a motion to strike from the files in the divorce action Roberts’ motion to increase the child support payments for the reason that he, the father, was a resident of Colorado; that venue was in Denver county, Colorado; that the motion of Roberts disclosed on its face that he had no right to file the same, and that the district court had no jurisdiction over the subject matter thereof. The motion to strike was overruled and the father filed his answer, in which he alleged that he was the father and the natural guardian of Linda Kay, a minor; that he was a resident of Colorado and the lower court had no jurisdiction over him, Linda Kay or the subject matter of the motion filed by Roberts, and that at all times since the death of Mary Lou Robben, his former wife and the mother of Linda Kay, he had offered to support and maintain Linda Kay, provided she made her home with him; that he had on numerous occasions requested Linda Kay to do so, but she had refused; that he, as the father and natural guardian of Linda Kay, was entitled to the control of her; that he had never been charged or found to be a person unfit to have custody of her; that under the laws of this state and those of Colorado he was entitled to custody of her, and that Linda Kay had never been declared a dependent and neglected child but had chosen to reside with her uncle, Louis E. Roberts, Jr. Roberts replied with a general denial. The trial court heard the evidence and found at the conclusion thereof that it had no jurisdiction over the matter, from which order Roberts appeals. We find it necessary to first determine the validity of Roberts’ appointment as guardian and his right to maintain this proceeding. By statute, the father and the mother are natural guardians of the person of their child. If either dies, the natural guardianship devolves upon the other (G. S. 1949, 59-1802; May v. May, 162 Kan. 425, 176 P. 2d 533; In re Vallimont, 182 Kan. 334, 338, 321 P. 2d 190). The surviving parent then has the right to custody of the child (2 Beale, Conflict of Laws, § 144.2, p. 717), and the welfare of the child is best served by leaving it with its natural guardian unless it is demonstrated that the parent is unfit to discharge the duties which are correlative to his right (Denton v. James, 107 Kan. 729, 193 Pac. 307; May v. May, supra; In re Hollinger, 90 Kan. 77, 132 Pac. 1181). We have not overlooked the fact that Linda Kay was, at the time of her mother’s death, domiciled in Ohio and that as a result of that fact Ohio law would govern as to who became her natural guardian. Under G. S. 1949, 60-2878, we should take judicial notice of Ohio law, but we have not been favored by counsel with any authorities thereon. In such a situation, we are of the opinion that we may safely assume Ohio law is the same as that of Kansas with reference to this matter of natural guardianship. See Seemann v. Eneix, 272 Mass. 189, 195, 172 N. E. 243. In the original divorce proceeding the father was not found to be unfit to have the custody of the child nor is it alleged in this proceeding that he is unfit. The natural rights of the father were not completely annulled by the order in the divorce proceeding awarding the custody of the child to the mother; they were suspended for the time being but were revived in full force by the mothers death (In re Hollinger, supra, p. 79; In re Vallimont, supra, p. 336; Denton v. James, supra). Under the' laws of this state, there is no question but that upon the death of the mother, the father, being the natural guardian of Linda Kay, was entitled to her custody. Therefore, the domicile of Linda Kay’s father (Colorado) then became hers. It is well settled that a minor has no capacity to select a domicile or place of residence of his own. The place of residence of the father, the mother being dead, is what the law regards as the place of residence of the minor. (Jaggar v. Rader, 134 Kan. 570, 7 P. 2d 114; Trammell v. Kansas Compensation Board, 142 Kan. 329, 46 P. 2d 867.) It is also true that the domicile of Linda during her minority continues to be that of her father. The fact that a child lives apart from the father, whether or not with permission of the father, is immaterial. The child has no power to acquire a domicile of choice, nor can the father fix the domicile of the child at any place other than that at which he has his domicile. (Restatement of the Law, Conflict of Laws, § 30, p. 55; Trammell v. Kansas Compensation Board, supra.) The place of residence of the father being in Colorado, that state is, in law, the place of residence of Linda Kay. The probate court of the county of the minor’s legal residence is the only probate court which has jurisdiction to appoint a guardian for the minor’s estate. Inasmuch as Linda Kay at no time had a place of residence or a domicile in Barton county, the attempted appointment by the probate court of that county of Louis E. Roberts, Jr., as guardian of the estate of Linda Kay was ineffectual. (Jaggar v. Rader, 134 Kan. 570, 573, 7 P. 2d 114.) While the district court of McPherson county had jurisdiction over the matter of Linda Kay’s support and maintenance, Louis E. Roberts, Jr., his appointment being ineffectual, was a stranger to the action and had no authority to file the motion or to maintain the proceeding therein, and the trial court properly denied relief. It appears from the record that the father is willing to support Linda Kay if she will live with him in Colorado. When a father has custody of the child, is willing to support it in his own home and has not been found to be unfit, the fact that the child lives elsewhere does not mean the father must pay some stranger for its support. We find no error in the effect of the trial court’s order, and the judgment is affirmed. It is so ordered.	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The opinion of the court was delivered by Jackson, J.: This is an appeal from a lump sum judgment based upon a workmen’s compensation award under G. S. 1949, 44-512a. The real point in the appeal is a contention that under that section of the workmen’s compensation act the employee would not have a right to demand payment under his award of the commissioner until time for appeal had expired and the award had become final. That is, appellants frankly argue that this court was in error in deciding the recent case of Bentley v. State Department of Social Welfare, 187 Kan. 340, 356 P. 2d 791. The facts of this case were stipulated in the trial court, and for the purposes of this opinion may be summarized as follows: Appellee was employed by appellant .Moore Associates as a carpenter; as a result of an accident on November 13, 1959, the employee received a compensation award for temporary total disability on May 16, 1960. On May 19, 1960, the workman by registered mail demanded payment of his award as provided in section 44-512a. This letter was sent to both appellants and to their attorney and was received by the parties on May 23, 1960. On May 27, 1960, the present appellants appealed from the workmen’s compensation award to the district court of Shawnee county. On June 15, 1960, appellants paid the workman the sum of $760 under the order of the workmen’s compensation award and also began making weekly payments as therein provided. On June 24, appellants also paid to the workman’s doctor the amount then due him as provided in the award. Thereafter, upon motion of the appellee, on October 7, 1960, the district court dismissed appellants’ appeal from the workmen’s compensation award on the theory that appellants had acquiesced in the award by making the above payments. (It should be noted that we express no opinion as to the correctness of this holding of the trial court.) On December 5, 1960, the present appellants attempted to appeal from the last action of the district court, but their appeal was found to have been out of time by this court and was dismissed. The present action under section 44-512a was originally filed June 18, 1960, and after the above stipulation of facts, the trial court entered judgment for the entire workmen’s compensation award in a lump sum and overruled appellants’ motion for a new trial. In appealing from this last judgment, appellants first cite Cruse v. Chicago, R. I. & P. Rly. Co., 138 Kan. 117, 23 P. 2d 471, and quote the first paragraph of the syllabus of that case to the effect that the Workmens Compensation Act provides an exclusive procedure and that there may not be borrowing from tire civil code of procedure. This court still endeavors to enforce that rule (Bushman Construction Co. v. Schumacher, 187 Kan. 359, 356 P. 2d 869; Fleming v. National Cash Register Co., 188 Kan. 571, 363 P. 2d 432). In fact, in the Bentley case, which appellants are questioning in this appeal, we find the following language: “. . . The parties agree the workmen’s compensation act is complete within itself. We know of no provision of the act which would limit the force and effect of an award by the commissioner until it was changed by him or modified or reversed upon appeal. In modem times, an award or judgment may usually be enforced pending an appeal, unless by statute the judgment be specifically held in abeyance by the filing of the appeal. (3 Am. Jur. Appeal & Error § 524; 4a C. J. S. Appeal & Error § 613.) As would appear from Miller v. Massman Construction Co., 171 Kan. 713, at 717, 237 P. 2d 373, the judgment in the present action, if it were against a private employer, would be a proper judgment upon which to issue execution pending the appeal to this court unless a supersedeas bond were filed. Section 44-512a provides a mode chosen by the legislature for attempting to insure the prompt payment of compensation awards and applies to all awards without the slightest qualification.” (Emphasis supplied.) (p. 342.) Appellants, we fear, misinterpret the latter part of the above quotation and understand that the court was borrowing from the civil code and failing to distinguish between an award and a judgment. They cite the case of Resnar v. Wilbert & Schreeb Coal Co., 132 Kan. 806, 297 Pac. 429, to the effect that “an award is not precisely a judgment.” They also refer to the cases of Lenon v. Standard Oil Co., 134 Kan. 289, 5 P. 2d 853, and Paul v. Skelly Oil Co., 134 Kan. 636, 7 P. 2d 73, in which this court held that on affirmance by the district court of an award, the decision became a judgment, and that execution could then be issued. What the court really had in mind in the language quoted above, was that the compensation act and section 44-512a thereof has no provision staying proceedings during appeals; the general modern rule in all procedure is that a mere appeal does not stay proceedings, and that there was no reason to believe the provisions of section 44-512a should be stayed for an appeal under some theory of lack of jurisdiction such as prevailed at ancient common law when a writ of error had been obtained from the chancery. Moreover, the Resnar, Lenon and Paul cases, supra, were all decided in 1931 and 1932. The legislature did not add section 44-512a to the compensation act until 1943 (L. 1943, ch. 189, § 1). It is entirely possible that the legislature decided that workmen needed stronger ways of enforcing workmen’s compensation awards. We also note that in the Resnar case, supra, immediately following the part of the sentence quoted in appellants’ brief, the court referred to R. S. (1923 ) 44-529. Under the old form of the statute the workmen could by the use of that section bring an action for 80% of the total award if he felt himself insecure. Thus the idea of suing for a lump sum award is not entirely new in workmen’s compensation circles. The decision in the Bentley case was not lightly made, the case of Redenbaugh v. State Department of Social Welfare, 187 Kan. 320, 356 P. 2d 794, being handed down on the same day, and further see Mitchener v. Daniels, 187 Kan. 765, 359 P. 2d 872, with special attention to the second paragraph of the syllabus and corresponding portion of the opinion. We would also refer to Fleming v. National Cash Register Co., supra, and direct attention to the second paragraph of the syllabus and corresponding portion of the opinion as to the nature of an award under the compensation act. While we are sorry to differ with appellants, we find no reason to extend the opinion. The judgment appealed from is affirmed.	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The opinion of the court was delivered by Wertz, J.: The plaintiffs (appellees), Galyn and Jean Gano, brought this action against the defendant (appellant), Broolcs Hall, to recover damages to their land and sheep resulting from the pollution of a stream on the land caused by the escape of crude oil, salt water and other refuse from defendant’s oil lease operations. A verdict was returned and approved and a judgment for actual damages was entered by the trial court in plaintiffs’ favor. From an order overruling defendant’s demurrer to plaintiffs’ evidence and from other post-trial motions, defendant appeals. Plaintiffs’ petition alleged that defendant wrongfully permitted crude oil, salt water and other refuse to drain from his wells and tanks across their pasture land and into the stream thereon, thus polluting the water and rendering it unfit for their sheep to drink; that as a result of such pollution ten of the lambs died and the remaining 107 became ill and did not fatten as they otherwise would have done, and the 147 ewes failed to breed or to conceive and were worthless as breeding stock, and that plaintiffs were put to the expense of additional feed and labor. Plaintiffs asked for damages for the loss of their anticipated profits on the lambs, for the damage to the ewes as breeding stock and for the added expense to which plaintiffs were put in providing extra feed and labor because of the pollution of the stream. The issues were joined and the case proceeded to trial. Defendant admitted in his opening statement that oil and salt water had escaped from his pipe lines and had gotten into the stream, and that plaintiffs were entitled to recover proved damages. The evidence reveals that on February 22, 1959 plaintiffs were pasturing “147 ewes and 114 head of lambs” on the mentioned land, at which time plaintiffs discovered oil on their flock of sheep and found that the majority of them were sick and “scouring” and some of the lambs were in the last stages of dying (ten of them did die). The following morning plaintiffs found oil in the stream and discovered that it came from the wells operated by defendant. The evidence also discloses that after the sheep became ill, a reliable veterinarian informed plaintiffs there was nothing with which to doctor the sheep. The sheep thereafter “shrank awful bad.” Out of the 147 ewes only forty-six lambed, and only twenty to twenty-five of the lambs lived. The ewes were no longer useful as breeding stock and could only be sold as slaughter ewes at four to five cents a pound. They would have been worth $25 to $30 a head as breeding stock. A veterinarian testified that sheep which have access to and consume oil and salt water experience a severe diarrhea which causes a marked and rapid weight loss; that the digestive tract of the animals would be affected in such a manner they could no longer absorb food materials efficiently; that the animals would not regain weight in a normal manner, and that the ewes would be in very poor condition for breeding purposes and a large percentage of them would fail to come with lamb. A sheep specialist testified that healthy lambs of the same age as those of plaintiffs would weigh between ninety-five to 105 pounds at market time. The evidence further discloses that when the lambs drank from the polluted stream they weighed fifty-five to sixty-five pounds each; that on June 1, plaintiffs marketed forty-one head, twenty of which averaged 75& pounds and brought $24 a hundred, and twenty-one of which averaged sixty-six pounds and brought $18.50 a hundred. On July 13; plaintiffs marketed fifty head of lambs which averaged sixty-five pounds and sold for $18 a hundred. The lambs should have each weighed approximately 100 pounds at market time. The evidence further reveals the necessity for and the cost of the extra feed and labor incurred by plaintiffs in an attempt to get the lambs ready for market. The defendant offered no evidence. The trial court instructed the jury on the theory of the case under the pleadings and the evidence. Instruction No. 3 reads: “You are instructed that the defendant in this case had admitted in open court that he is liable to the plaintiffs in damages on account of the fact that crude oil and salt water escaped from his oil wells over and through the plaintiffs’ land, and it will .thus not be necessary for the jury to decide that question. The plaintiffs claim damages to two acres of their land, for the loss by death of lambs, the loss by shrinkage of ewes and lambs, the loss of wool, the loss of lambs because of the failure of the ewes to breed, the loss to value of the ewes as breeding stock, and the loss of labor and time by the plaintiff, Gayln Gano. The defendant is contesting the amount of damages claimed by the plaintiffs, and, therefore, the only matters for the jury to decide in this case are: What actual damage was suffered by the plaintiffs, the amount of such damages as proven by the preponderance of the evidence in this case; whether the plaintiffs are entitled to punitive damages from the defendant, and tlie amount of such punitive damages.” Instruction No. 5 reads in pertinent part: “You are instructed that plaintiffs are asking damages due to the alleged shrinkage of one group of sheep and shrinkage and loss of weight to another group. “The burden of proof in the first instance rests upon plaintiffs to establish by a preponderance of the evidence that the alleged shrinkage and the alleged shrinkage and loss of weight, if any, in said sheep, occurred as alleged in the plaintiffs’ petition, and, secondly, that said shrinkage and loss of weight was caused by the alleged wrongful acts of the defendant. “If you find from a preponderance of the evidence, (1) that the water on the land was polluted and further find by a preponderance of the evidence that said sheep drank said water and were injured thereby, causing shrinkage and loss of weight, the plaintiffs could recover for such loss, if any, and, their recovery, if any, would be measured by other instructions given you by the Court herein.” Instruction No. 6 reads as follows: “You are instructed that plaintiffs make claim for damages for loss by reason of the death of sheep, and also claim damages for shrinkage and loss of weight to their sheep. In the event you find from the evidence and by a preponderance thereof that the plaintiffs suffered damages to their sheep by reason of the v/rongful act or acts of the defendant, then the measure of damages in such cases is the difference between the fair market value of the said sheep immediately before such alleged injury and the fair market value immediately thereafter.” There was no objection to the instructions and they became the law of the case. The jury returned a verdict in favor of the plaintiffs for actual damages only and returned its answers to the special questions submitted by the court in which plaintiffs were allowed damages for the dead lambs, for the loss of weight on the lambs sold in June and July of 1959, for the loss of wool on the lambs, for the difference in the fair market value of the breeding ewes prior to their injury and of the ewes after their injury, and for the additional feed and labor necessary in caring for the sheep, as well as damages for the loss of the use of the two acres of land. The trial court entered judgment on the verdict, from which defendant appeals. Defendant complains of the court’s instructions Nos. 3 and 5, which applied the measure of damages to the shrinkage and loss of weight caused the lambs by the drinking of the water from the polluted stream. He contends that the measure of damages should have been the difference between the fair market value of the lambs immediately before the alleged injury and the fair market value of the lambs immediately thereafter, as set forth in instruction No. 6. We think the defendant puts too narrow an interpretation on instruction No. 6. There was no injury immediately after the lambs drank the polluted water. They did become ill and plaintiffs used every effort to restore them to health and to increase their weight by special feeding and care, but when plaintiffs found it impossible to do so, they sold the lambs. The damages thus became fixed. Instructions Nos. 3, 5 and 6 must be read and considered together. The case was tried and submitted to the jury upon the theory of the recovery of anticipated profits which had been lost due to the loss of weight by the lambs caused by their drinking the polluted water. It must be remembered that defendant made no objection to these instructions and he therefore has no right now to complain. Under plaintiffs’ evidence there was nothing particularly speculative or uncertain about their loss of profits. They had the lambs, the grass for them to eat and the water for them to drink. If the lambs had gained as the evidence showed they would have gained had the stream not been polluted by defendant, they would have sold for a certain market price; whereas, because of the pollution of the stream the lambs were prevented from making a normal gain in weight and thus brought a much lower market price. There can be no controversy over the fact that anyone sustaining substantial injury to his livestock by the pollution of a stream flowing through his pasture from which the livestock drank polluted water may maintain an action against the party causing the pollution and may recover any actual damages thereby sustained (Corwine v. Maracaibo Oil Exploration Corp., 184 Kan. 151, 334 P. 2d 419; Phillips v. Empire Oil and Refining Co., 131 Kan. 516, 292 Pac. 782; Manhattan Oil Co. v. Mosby, 72 F. 2d 840, 846; 15 Am. Jur., Damages, § 149, p. 556). The growth of the lambs and their increase in weight under ordinary conditions of care, pasturage and water are elements entering into the common business experience and observation of persons engaged in one of the important industries of our state and are ordinarily susceptible of reasonable estimate and calculation by those who have had such experience (Skinner v. Gibson, 86 Kan. 431, 121 Pac. 513). In the instant case the loss of weight due to the drinking of the polluted water by the lambs was testified to by experts in the field of sheep raising. Defendant contends that the plaintiffs failed to prove the sheep actually drank from the polluted stream. There is no merit to this contention. Defendant admits that the water was polluted. The record discloses ample evidence, both direct and circumstantial, to show that the sheep drank from the stream polluted by the oil and salt water and that as a result they became ill and were “scouring” and passing an oily substance. Defendant asserts that the evidence was insufficient to support the findings and the judgment. No useful purpose would be gained by detailing the evidence on each specific finding. Suffice it to say that we have examined the record and find that the findings are supported by substantial and competent evidence. The other contentions by defendant have been considered and are found to be without merit. The judgment of the trial court is affirmed. It is so ordered.	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The opinion of the court was delivered by McFarland, J.: This is an appeal from the district court’s denial of a petition for allowance of demand filed by the Federal Deposit Insurance Corporation (FDIC) against the Estate of Gilbert R. Rains, deceased. The basis of the claim is a federal court judgment entered against the Estate. The district court held that the FDIC had failed to prove its claim in that it had not followed either of the statutory methods for doing so. The facts may be summarized as follows. In 1985, Gilbert R. Rains filed an action in the district court of Reno County against the Boulevard State Bank (BSB) and others. BSB filed a counterclaim therein seeking repayment of two loans made to Rains. In the early part of 1987, BSB failed and was taken over by FDIC, which was substituted as a party defendant on June 3, 1987. Meanwhile, on March 27, 1987, Gilbert R. Rains died. Probate proceedings were commenced on April 15, 1987, with the wife, Pauline Rains, being appointed executrix. On September 1, 1987, FDIC caused the action to be removed to the federal district court. A dispute arose as to whether or not FDIC had properly substituted the Estate for the deceased individual pursuant to K.S.A. 60-225(a)(l). On May 3, 1988, the federal district court held in favor of FDIC both on the timeliness of the substitution and on the merits of the counterclaim. After various post-judgment motions, an entry of judgment was filed on January 10, 1990. On January 17, 1990, an uncertified copy of the judgment was filed in the Estate attached to a petition for allowance of demand. The Estate appealed the federal judgment to the Tenth Circuit Court of Appeals. The federal district court opinion is Estate of Rains v. Federal Deposit Ins. Corp., 702 F. Supp. 1520 (D. Kan. 1988), and may be referred to if additional information on this aspect of the facts is desired. On June 26, 1990, the Reno County District Court denied FDIC’s petition for allowance of demand on the ground the claim had not been properly proved by either statutory method. Specifically, the court held: The petition for allowance was not filed within the time fixed by law (K.S.A. 1990 Supp. 59-2237 and K.S.A. 1990 Supp. 59-2239); nor was a certified copy of the judgment filed within 30 days of its entry pursuant to K.S.A. 59-2238. FDIC filed its notice of appeal therefrom on September 21, 1990 (filed within 30 days after the denial of its motion for reconsideration). On February 25, 1991, the Tenth Circuit affirmed the federal district court in an unpublished opinion (1991 WL 35375 [10th Cir. Kan.]). A certified copy of the Tenth Circuit opinion was filed in Reno County in the proceedings herein on March 4, 1991. On May 13, 1991, the Tenth Circuit denied the Estate’s motion for rehearing and certified copies of the same were filed in Reno County and with the Clerk of the Appellate Courts within 30 days of its entry. The Estate filed a motion before us to strike these filings relative to actions taken by the Tenth Circuit as being subsequent to and outside of the record herein. The motion was denied on June 17, 1991. For reasons to be hereinafter discussed, these filings are germane to the decision of the issues before us. We turn now to the statutes relative to the exhibition of demands against an estate which provide, in pertinent part, as follows: K.S.A. 1990 Supp. 59-2237(a): . “Any person may exhibit a demand against the estate of a decedent by filing a petition for its allowance in the proper district court. Such demand shall be deemed duly exhibited from the date of the filing of the petition. The petition shall contain a statement of all offsets [to] which the estate is entitled. The person exhibiting the demand shall provide a copy of the demand, as filed, to the personal representative of the estate. The court shall from time to time as it deems advisable, and must at the request of the executor or administrator, or at the request of any creditor having exhibited demand, fix the time and place for the hearing of such demands. Notice of the time and place of the demand hearing shall be given in such manner and to such persons as the court shall direct.” K.S.A. 59-2238: “(1) Any action pending against any person at the time of such person’s death, which by law survives against the executor or administrator, shall be considered a demand legally exhibited against such estate from the time such-action shall be revived. Such action shall be revived in the court in which it was pending and such court shall retain jurisdiction to try and determine said action. “(2) Any action commenced against any executor or administrator after the death of the decedent shall be considered a demand legally exhibited against such estate from the time of serving the original process on such executor or administrator. “(3) The judgment creditor shall file a certified copy of the judgment obtained in an action such as described in subsection (1) or (2) of this section in the proper district court within thirty (30) days after said judgment becomes final.” K.S.A. 1990 Supp. 59-2239(1): “All demands, including demands of the state, against a decedent’s estate, whether due or to become due, whether absolute or contingent, including any demand arising from or out of any statutory liability of decedent or on account of or arising from any liability as surety, guarantor or indemnitor, and including the individual demands of executors and administrators, not exhibited as required by this act within four months after the date of the first published notice to creditors as herein provided, shall be forever barred from payment, except that the provisions of the testator’s will requiring the payment of a demand exhibited later shall control. No creditor shall have any claim against or lien upon the property of a decedent other than liens existing at the date of the decedent’s death, unless a petition is filed for the probate of the decedent’s will pursuant to K.S.A. 59-2220 and amendments thereto or for the administration of the decedent’s estate pursuant to K.S.A. 59-2219 and amendments thereto within six months after the death of the decedent and such creditor has exhibited the creditor’s demand in the manner and within the time prescribed by this section, except as otherwise provided by this section.” K.S.A. 60-225(a)(l): “If a party dies and the claim is not thereby extinguished, the court shall on motion order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party or by any party and, together with the notice of the hearing, shall be served on the parties as provided in K.S.A. 60-205, and upon persons not parties in the manner provided for the service of a summons. Unless the motion for substitution is made within a reasonable time after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.” The federal district court decision (and the Tenth Circuit affirmance thereof) concerned, inter alia, some irregularities in the substitution of the Estate as a party. The two federal courts concluded these irregularities were primarily caused by the attorney for the Estate and held the substitution to be valid. What is the effect of this determination? As the federal district court properly stated: “The party that wishes to maintain its claim against the estate of a deceased party must comply with several statutory steps. The litigant, like any other creditor of the estate, must make a demand against the estate. . . . The litigant makes the demand by reviving the cause of action. K.S.A. 58-2238(1). ‘Substitution of partiés and revivor of actions are different names for the same thing. The revivor of an action is in fact the substitution of new parties who have the right, under the substantive law, to go ahead with the prosecution or defense of the claim.’ Livingston v. Bias, 7 Kan. App. 2d 287, 289, 640 P.2d 362 (1982).” 702 F. Supp. at 1522-23. In view of the fact the Reno County District Court referred to the procedure set forth in K.S.A. 1990 Supp. 59-2237, some comment needs to be made relative to that statute. It sets forth how a demand is to be exhibited where litigation thereon is not pending against the deceased and where no separate litigation is to be commenced against the estate. If litigation is involved, then the demand is exhibited against the estate by the means set forth in K.S.A. 59-2238. In the case before us, the demand was legally exhibited against the Estate by the revival of the action (substitution of the Estate). This aspect of the litigation has been finally determined by the federal action and there is no contention otherwise. As previously noted, FDIC filed an uncertified copy of the federal district court judgment within 30 days of its entry. The Reno County District Court held this tantamount to no filing at all. On appeal, FDIC’s primary position is that the federal district court judgment was not the final judgment contemplated by K.S.A. 59-2238(3) but, rather, the final judgment in the federal case was that of the Tenth Circuit. A certified copy of that judgment was filed within 30 days. Alternatively, FDIC argues that the uncertified copy of the federal district court decision satisfied the statutory requirements as: (1) the filing of a certified copy requirement is directory rathér than mandatory; and (2) FDIC was in substantial compliance with the statute. The only matter before us is, then, whether FDIC’s actions herein have satisfied the requirement of K.S.A. 59-2238(3) that a certified copy of the final judgment in the federal action be filed in the probate proceeding in district court within 30 days after its entry. Obviously, the first matter to be discussed is when the judgment in the federal case became final for the purposes of K.S.A. 59-2238(3). Initially, we need to look at the federal viewpoint on when federal judgments become final. In McDonald v. Schweiker, 726 F.2d 311 (7th Cir. 1983), the issue concerned whether an award of attorney fees under the Equal Access to Justice Act (EAJA) (28 U.S.C. § 2412[d][l][R] [1982]), was untimely. The statute required the application be submitted “within thirty days of final judgment in the action.” The application was not submitted within 30 days after the district court’s decision, but was submitted within 30 days after the appeal had been finally determined. In deciding that “final judgment” in the statute under examination meant after exhaustion of appellate proceedings, Judge Posner explained: “The term ‘final judgment,’ which appears 151 times in the United States Code, does not have a single fixed meaning. Sometimes it denotes a judgment that disposes of the plaintiffs claim in the district court. See, e.g., Fed. R. Civ. P. 54(b); cf. 28 U.S.C. § 1291 (‘final decisions’). But sometimes it denotes the judgment that writes finis to the entire litigation, after all appellate remedies have been either exhausted or, as here, abandoned. See, e.g., Clayton Act, § 5(a), 15 U.S.C. § 16(a). Context may disambiguate. Where the purpose of a statute or rule is to indicate what orders are appealable, as is true of Fed. R. Civ. P. 54(b) or 28 U.S.C. § 1291, finality must refer to the pre-appellate proceedings. But in a statute such as 46 U.S.C. § 748, which defines the circumstances under which the United States will pay admiralty claims, ‘final judgment’ must mean final after all appeals, for one cannot imagine the government being willing to pay before then (as we are about to see).” 726 F.2d at 313. Judge Posner’s view that the 30-day provision in EAJA was meant to establish a deadline, not a starting point, was subsequently ratified by the United States House Committee on the Judiciary in 1985 (28 U.S.C. § 2412[d][2][G] [1988]), which rejected a contrary view in McQuiston v. Marsh, 707 F.2d 1082 (9th Cir. 1983). See Cervantez v. Sullivan, 739 F. Supp. 517, 519 (E.D. Cal. 1990). The reasoning of the McDonald case is applicable herein. The federal district court entered judgment against the Estate in excess of $250,000. The Estate appealed that determination to the Tenth Circuit. It would be highly unlikely that the Estate would be willing to pay the claim while the same was subject to modification by the Tenth Circuit. “Final judgment” would logically appear to be that which exists after all appellate remedies have been exhausted or the time therefor has expired. “Final judgment” in Kansas courts, likewise, must have more than one meaning. In the context of appeals from district courts to appellate courts (K.S.A. 60-2101 et seq.), final orders or judgments refer to when the judgment or order has become final in the district court. Within the context of the Kansas Administrative Procedure Act (K.S.A. 77-501 et seq.), judicial review is permitted from final agency actions which requires exhaustion of administrative remedies (K.S.A. 77-607, 77-612), unless the same is interlocutory or some statute specifically permits judicial review without such exhaustion of administrative remedies. See W. S. Dickey Clay Mfg. Co. v. Kansas Corp. Commn, 241 Kan. 744, 740 P.2d 585 (1987). However, when “final judgment” is used away from appellate and judicial review procedures, a different pattern emerges. Kansas cases signal that a “final judgment” is considered “final” only after the expiration of the time established by law for the filing of an appeal, or after the time for filing and determination of post-judgment motions has expired. Ninety years ago we stated that “the judgment must be regarded as final after an expiration of the time in which an appeal is allowed by law.” Manley v. Park, 62 Kan. 553, 564, 64 Pac. 28 (1901). We have since steadfastly adhered to that rule. Neufeldt v. L. R. Foy Constr. Co., 236 Kan. 664, Syl. ¶ 1, . 693 P.2d 1194 (1985). In Traylor v. Wachter, 3 Kan. App. 2d 536, 542, 598 P.2d 1061 (1979), modified 227 Kan. 221, 607 P.2d 1094 (1980), the Court of Appeals said, “[N]o judgment is final until the time for filing and determination of post-judgment motions and appeals has expired.” Kansas statutes support the theory that a final judgment pursuant to K.S.A. 59-2238(3) means after all appeals are taken. The Kansas Consumer Protection Act, K.S.A. 50-623 et seq., defines “final judgment” as follows: “ ‘Final judgment’ means a judgment, including any supporting opinion, that determines the rights of the parties and concerning which appellate remedies have been exhausted or the time for appeal has expired.” K.S.A. 50-624(d). In the Kansas Uniform Enforcement of Foreign Judgments Act (UEFJA), K.S.A. 60-3001 et seq., the enforceability of a judgment is affected by an appeal of the foreign judgment. K.S.A. 60-3001 defines foreign judgments as “any judgment, decree, or order of a court of the United States or of any other court which is entitled to full faith and credit in this state.” Therefore, the judgment obtained by FDIC is enforceable under the UEFJA. The UEFJA provides: “If the judgment debtor shows the district court that an appeal from the foreign judgment is pending or will be taken, or that a stay of execution has been granted, the court shall stay enforcement of the foreign judgment until the appeal is concluded, the time for appeal expires, or the stay of execution expires or is vacated, upon proof that the judgment debtor has furnished the security for the satisfaction of the judgment required by the state in which it was rendered.” K.S.A. 60-3004(a). (Emphasis supplied.) K.S.A. 60-3004(a) permits the filing of foreign judgments which have been appealed or are subject to appeal, but stays enforcement thereof until the appeal is concluded, the time for appeal expires, or the stay of execution expires or is vacated. K.S.A. 60-3004(a) does not require that the foreign judgment be a “final judgment” but stays enforcement until, in effect, it becomes final. Obviously, attempts to enforce a foreign judgment which is subject to modification would be a waste of everyone’s time. In the statute before us, K.S.A. 59-2238(3) requires the filing of a certified copy of the final federal judgment. The opinion of the Tenth Circuit affirming the federal district court certainly comes within the purview of the “final judgment” requirement of K.S.A. 59-2238(3). We believe such construction is consistent with the purpose of K.S.A. 59-2238. The demand has already been exhibited against the Estate by the revival of the action. The filing of a certified copy of the final judgment triggers determination of the claim by the estate proceeding. Determination of the demand herein could not have been made until the federal action had concluded in its entirety. The result we have reached places this appeal in a strange posture. The district court disallowed a demand because a certified copy of what we have determined was not the final judgment in the case was not filed within 30 days of its entry. While the appeal herein was pending, the federal judgment did become final and a certified copy thereof has been filed within the required 30-day period. Under the circumstances herein, we must reverse the judgment of the district court and remand the case for determination of the demand based upon the filing of the certified copy of the final judgment of the Tenth Circuit. As a result of our conclusions herein, the alternative issues on appeal are rendered moot and need not be determined. The judgment of the district court is reversed and the case is remanded for further proceedings consistent with this opinion.	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The opinion of the court was delivered by Allegrucci, J.: This is a direct appeal by the defendant from convictions of aggravated kidnapping, K.S.A. 21-3421; indecent liberties with a child, K.S.A. 1990 Supp. 21-3503; and sexual exploitation of a child, K.S.A. 1990 Supp. 21-3516(l)(b). The defendant contends the district court erred in instructing the jury as to aggravated kidnapping and that the evidence was insufficient to support the convictions of aggravated kidnapping and sexual exploitation of a child. Shortly before 6:30 p.m. on October 23, 1989, seven-year-old K.T. left home to “see some puppies down the street.” She took her dog, Rusty, with her. About 10 minutes later, Rusty returned alone. The police were called and arrived about 7:00 p.m. For the next 24 hours, the police, with many volunteers, looked for K.T. On October 24, 1989, Officer Fortune, of the Wichita Police Department, was involved in the search for K.T. At approximately 6:30 p.m., he noticed her walking toward her house from the alley. When he questioned her, K.T. told Fortune that she had been with a man called “Clay” or “Blue” close to her home. Assuming she had been driven to the area and left by someone, Fortune asked what color car the individual had. K.T. told him the man had a blue car. Fortune then ran towards the alley to ask if anyone had heard or seen anything. A neighbor told him that he had heard a door slam to the north. Fortune heard a car start to the north in the alley. When he ran into the alley, he saw a blue car backing out. He yelled, “Police. Hold on.” The second time he yelled, the vehicle stopped, and the driver got out. The individual driving the car produced an Indian reservation identification card with the name Clayton Peltier. Fortune recalled that K.T. had given the name “Clay,” which he suspected was a variation of the name Clayton. Peltier claimed he had been looking for a job all day. Because Peltier was acting “too nervous,” Fortune placed him in handcuffs. Although K.T. was normally a talkative child, her mother testified that when K.T. first returned home she was very quiet and hesitant. K.T. told her mother and the police that Clay said he would kill her mother if K.T. said anything. After being assured that nothing would happen to her mother, K.T. told her mother and the police that she had been in a house in the alley with a man she called Clay and Blue. K.T. told them he had taken pictures of her but did not mention that he had touched her. She also described tattoo marks on the person’s hands and body. One of the officers went into the alley where Fortune was holding defendant. When the officer saw similar tattoo marks on defendant’s hands, defendant was taken into custody as a suspect. K.T. testified at trial that when she left her house she went to the alley. There she spoke to Clay, who offered her some dog food for her dog. She told him she would wait outside, but he led her inside and told her to watch television while he got the dog food. Clay got something from a box. Then he sat with K.T. on the couch and watched television. During this time she sat on his lap, and he rubbed her “private” underneath her dress and panties. He later took her to a bed and got on top of her, telling her she could go home after taking a nap. Her testimony was conflicting as to whether Clay was wearing any clothes when he touched his “private” to her “private.” Neither of them said anything and, when he got off her, she said that she wanted her mother. He told her that if she did not quit crying and asking for her mother, he would not let her go. At one point, Clay kissed K.T., putting his tongue in her mouth, and told her he was doing it so she would know how when she grew up. She stated he did not touch her while he kissed her. While in the bedroom, Clay put different pairs of his girlfriends’ panties on K.T. He licked her “private” with his tongue and took pictures of K.T. in her dress and in his girlfriends’ underwear, but K.T. did not see the pictures. He then let her go home. K.T. testified that, during her stay at defendant’s house, she heard knocking at the door three times. Each time he told her to be quiet, one time tying a white cloth over her mouth. She did not sleep at all, but he slept some of the time. K.T. testified that before letting her go, defendant told her that if she came back and saw him every day after school, he would give her $100 but that he would kill her mother if K.T. told anyone the truth. Following his arrest, a search was conducted of defendant’s house. Four pairs of women’s panties were retrieved, as well as a camera bag with a 35 millimeter camera containing a roll of film with 23 exposures. A police officer unloaded the undeveloped film from the camera and gave it to a laboratory technician, who developed the negatives. These negatives were later printed into photographs. Eleven of these photographs were introduced at trial. The parties stipulated that the photographs of K.T. were taken in defendant’s bedroom and were developed from film that was removed from a camera found in defendant’s house. Defendant testified that he recognized K.T. and that he had never touched or fondled her. The defendant first challenges the sufficiency of the evidence to support the element of bodily harm needed for aggravated kidnapping. This was the major issue argued in the district court and in this appeal. On appeal, the standard in considering the sufficiency of the evidence is whether after a review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); State v. Graham, 247 Kan. 388, 398, 799 P.2d 1003 (1990). Defendant argues that the State failed to establish beyond a reasonable doubt that bodily harm was inflicted upon K.T. Defendant recognizes that permanent injury is not necessary to establish the infliction of bodily harm but argues that some act of physical force, committed in “an intentional, hostile and aggravated manner” is necessary. State v. Sanders, 225 Kan. 156, 158-59, 587 P.2d 906 (1978). Thus, to elevate a simple kidnapping to a class A felony of aggravated kidnapping, which requires a life sentence, defendant asserts that some bodily harm must be inflicted. Defendant urges this court to reject the State’s “extreme position that [in] any case in which a child is fondled, bodily harm has been established.” The defendant points out that if the legislature had intended the penalty for indecent liberties with a child to be a class A felony, it would have made it one, instead of a class C felony. Therefore, defendant argues that not every indecent liberties offense committed in connection with a simple kidnapping should automatically sustain an increased charge of aggravated kidnapping. This court has consistently held that rape as a matter of law constitutes bodily harm sufficient to support an aggravated kidnapping conviction. State v. Brown, 181 Kan. 375, 312 P.2d 832 (1957). In analyzing the history behind aggravated kidnapping, the court in Brown pointed out that the statute in effect grew out of the Lindbergh kidnapping case, where ransom was the motive and the victim was taken from one state to another. 181 Kan. at 385. The court concluded that the Kansas statute denounced two acts of kidnapping in the first degree: (1) kidnapping with the intent to exact ransom or reward, and (2) kidnapping if bodily harm is inflicted upon the person kidnapped. 181 Kan. at 388. The court then turned to consider the definition of “bodily harm” required to establish kidnapping. The court examined recent decisions by the California courts that generally defined bodily harm to include any touching of the person of another “ ‘against his will with physical force in an intentional, hostile and aggravated manner, or projecting of such force against’ ” that person. Brown, 181 Kan. at 389 (quoting People v. Tanner, 3 Cal. 2d 279, 44 P.2d 324 [1935]). Thus, a forcible rape constituted bodily harm sufficient to sustain a conviction of aggravated kidnapping and the accompanying death penalty. 181 Kan. at 389 (citing People v. Brown, 29 Cal. 2d 555, 176 P.2d 929 [1947]). Once again following California decisions, this court in State v. Taylor, 217 Kan. 706, 714, 538 P.2d 1375 (1975), refined the definition of “bodily harm” by recognizing that some “trivial” injuries are likely to result from any forcible kidnapping by the very nature of the act. Insignificant bruises or impressions resulting from the act of kidnapping were not the type of “bodily harm” the legislature intended to subject to a more severe penalty. This court noted: “A significant policy reason for making the distinction is to deter a kidnapper from inflicting harm upon his victim, and to encourage the victim’s release unharmed.” 217 Kan. at 714. This court approved the California, court’s view that the legislature sought to deter “only unnecessary acts of violence upon the victim, and those occurring after the initial abduction” by enacting the aggravated kidnapping statute. 217 Kan. at 714. This refinement of the meaning of “bodily harm” fit prior discussions on the issue because the rapes in the earlier cases were acts of violence unnecessary to and not part of the kidnapping itself. Although the bodily harm or injury may have been temporary in these cases, at least some occurred. 217 Kan. at 714. In Taylor, the defendant threw a seven-year-old girl, who did not know how to swim, into a rain-swollen river. Because the girl suffered no permanent injury from her ordeal, the court concluded that, for the kidnapping to be aggravated, throwing her into the river must be “bodily harm” as a matter of law. 217 Kan. at 714-15. Bodily harm was previously defined in Brown to include “any touching of a victim against [the victim’s] will, with physical force, in an intentional, hostile and aggravated manner, or the projecting of such force against the victim by the kidnapper.” Brown, 181 Kan. at 389. The Taylor court concluded that throwing the girl into the river was an act of physical force committed in “an intentional, hostile and aggravated manner,” that was unnecessary and outside the required scope of forcible kidnapping. The aggravated kidnapping statute was designed to deter this type of attack. The river was swollen and fast, the girl could not swim, and she was wearing a heavy corduroy coat. Throwing the girl into the river constituted the bodily harm needed to support aggravated kidnapping. Taylor, 217 Kan. at 714-15. This court extended the concept that rape constitutes the “bodily harm” necessary for aggravated kidnapping as a matter of law to include acts of sodomy. In State v. Chears, 231 Kan. 161, 164, 643 P.2d 154 (1982), the trial court instructed the jury that the crime of sodomy, as set forth in the instructions, constituted bodily harm. This court once again relied upon a California Supreme Court case, which held that forcing a female victim to commit sodomy constituted the infliction of bodily harm withip the meaning of the California kidnapping statute. People v. Chessman, 38 Cal. 2d 166, 185, 238 P.2d 1001 (1951), cert. denied 343 U.S. 915, reh. denied 343 U.S. 937 (1952). Following the decision in Chessman, this court held that forcing a victim to commit sodomy constitutes the infliction of bodily harm as that term is used in the aggravated kidnapping statute, K.S.A. 21-3421. The State argues that the decision in State v. Bourne, 233 Kan. 166, 660 P.2d 565 (1983), supports its argument by holding that indecent liberties supplied the bodily harm to make the kidnapping charged in that case aggravated. In Bourne, the defendant argued that moving two girls individually to a separate bedroom to commit rape and indecent liberties, respectively, did not constitute movement needed to prove aggravated kidnapping under State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976). This court found moving each girl into another room, away, from her parents, brother, and defendant’s accomplice, was sufficient movement to constitute kidnapping because none of the others could see or interfere with defendant’s acts. The court then stated: “The rape and the indecent liberties supplied the bodily harm to make the kidnapping aggravated.” Bourne, 233 Kan. at 168. Bourne did not involve the sufficiency of evidence to support bodily harm for aggravated kidnapping but, instead, concerned the adequacy of the confinement sufficient to comply with Buggs. Only in deciding that the movement was sufficient did the court, in dicta, note that rape and indecent liberties supported the bodily harm needed to establish the aggravated nature of the kidnapping. In the instant case, the district court did not consider, and neither party discussed, the decision in State v. Royal, 234 Kan. 218, 670 P.2d 1337 (1983). In Royal, the victim was approached by a man in the parking lot of her apartment complex. He suddenly grabbed her around the neck and held a knife to her throat. She fought off the man, and he eventually, gave up. During the fight, she suffered a small knife gouge on her collarbone and a small cut on her hand, both from the knife the assailant was carrying. Also, she was knocked out and received a bad bruise and a scraped knee. 234 Kan. at 220. Defendant was charged with and convicted of aggravated kidnapping. The trial court refused defendant’s request to instruct on kidnapping as a lesser included offense. Defendant argued that the kidnapping became aggravated only when bodily harm was inflicted upon the person and that the victim, although sustaining injuries, did not receive injuries that constituted bodily harm sufficient to support a conviction of aggravated kidnapping as a matter of law. In considering this issue, this court reviewed its prior discussions of bodily harm in Taylor, 217 Kan. 706, as well as in State v. Sanders, 225 Kan. at 158-59. The court noted that Taylor defined bodily harm as “any touching of the victim against the victim’s will, with physical force, in an intentional, hostile and aggravated manner, or the projecting of such force against the victim by the kidnapper.” Royal, 234 Kan. at 222. The court further noted that the definition of bodily harm had been narrowed to recognize that some trivial injuries that are likely to result from any forcible kidnapping by the very nature of the act do not constitute bodily harm as that term is used in the aggravated kidnapping statute. Instead, only unnecessary acts of violence upon the victim and those occurring after the initial abduction constitute “bodily harm.” 234 Kan. at 222. Thus, minor cuts sustained by a victim during a successful escape effort, a scraped knee of a victim sustained while climbing down a ladder, and nosebleeds, fainting, and stomach distress did not constitute bodily harm. Considering the facts before it, the court in Royal found it significant that the gouge to the victim’s collarbone and the cut on her hand were inflicted by the knife used by the defendant in perpetrating the offense. Although these wounds were not life-threatening, the court did not regard them as “trivial” or as likely to result from any forcible kidnapping. Thus, the court held: “Where a knife or firearm is used in the perpetration of a kidnapping, and the victim is wounded by that instrument while the kidnapper is using it to accomplish the crime by force, we hold that the resulting injury constitutes bodily harm as a matter of law.” Royal, 234 Kan. at 222. The court concluded that the trial court did not err in refusing to instruct on the lesser included offense of kidnapping because defendant was either guilty of aggravated kidnapping or was not guilty. In the present case, K.T. was touched when defendant manually rubbed her “private,” which she identified as “between” her legs, with his finger and with his “private”; was touched when defendant licked her “private”; and was touched when defendant kissed her by inserting his tongue into her mouth. Defendant argues that K.T. never indicated that defendant was violent or rough, or that he hurt her. Thus, because absolutely no physical evidence of any injury was presented, defendant argues that the contact here, when compared with that in other cases considering this issue, falls far short of bodily harm. The same argument was raised in State v. Damewood, 245 Kan. 676, 783 P.2d 1249 (1989), in which the defendant challenged his aggravated kidnapping conviction on both elements of kidnapping by deception and bodily harm. The victim in Dame-wood was a teenaged boy whom defendant asked to assist him in a beekeeping operation. On two occasions, defendant, on the pretense of working on the beekeeping operation, took the youth into a rural area and forced him to engage in oral sex and other sexual activities. 245 Kan. at 678-79. This court found that the rape and indecent liberties constituted bodily harm for purposes of aggravated kidnapping. Concerning the argument that no evidence was presented that the victim actually suffered bodily harm, we noted: “While the facts in Bourne indicate the child victim had pain and bleeding in her vaginal area, the court’s analysis does not mention this as a factor in reaching its conclusion. In Chears there is no showing that the victim suffered any physical injury as asserted by the defendant. The long-established rule is that rape or sodomy is sufficient to establish the ‘bodily harm’ necessary in aggravated kidnapping. Here, [the victim] testified the defendant forced him to participate in various acts of sodomy. The evidence was sufficient to support the conviction of aggravated kidnapping.” 245 Kan. at 688. The State points out that defendant took indecent liberties with K.T. far beyond the initial abduction. Like the injuries suffered by rape and sodomy victims who have no lasting physical scars, defendant’s violation of K.T.’s body was a forcible act that the aggravated kidnapping statute was designed to prevent. While K.T. was not physically scarred or injured by the ordeal, she may carry emotional scars for the rest of her life,. The yictim’s testimony indicated that she was terrified throughout the ordeal. When all the evidence presented in this case is viewed in the light most favorable to the prosecution, it is clear that a rational factfinder could find the defendant guilty of inflicting'bodily harm sufficient to meet this element of aggravated kidnapping. K.T. prayed the defendant would let her go. When she had. the opportunity, she sat on the floor to discourage him from further encroaching upon her body. We next consider whether the district court erred in instructing the jury on aggravated kidnapping. At the trial, the State repeatedly asked the court to instruct that, as a matter of law, indecent liberties with a child constituted the element of “bodily harm” necessary to establish aggravated kidnapping. After hearing the arguments on the issue, the district court granted the State’s request and instructed the jury in Instruction No. 2, as follows: “The defendant is charged with the crime of Aggravated Kidnapping. The defendant pleads not guilty. “To establish this charge, each of the following claims must be proved: “1. That the defendant took or confined [K.T.] by force, threat or deception; “2. That it was done with intent to hold such person to facilitate the commission of indecent liberties with a child or sexual exploitation of a child. “3. That bodily harm was inflicted upon [K.T.]; and “4. That this act occurred between the 23rd and 24th day of October, 1989, in Sedgwick County, Kansas. “Indecent liberties with a child constitutes ‘bodily harm as used in this instruction.” (Emphasis added.) With the exception of the last sentence, this instruction follows the proposed aggravated kidnapping instruction found at PIK Crim. 2d 56.25. The Notes on Use of this PIK instruction state that, if a factual issue exists about whether bodily harm has been sustained by the victim or about the extent of the harm, the instruction on aggravated kidnapping “should include the definition of‘bodily harm.’ ” (Citing State v. Royal, 234 Kan. at 222.) The district court here did not follow the suggestion of the Notes on Use to the aggravated kidnapping instruction by including a definition of bodily harm and letting the jury decide whether the evidence established it. Instead, the court instructed that indecent liberties with a child constituted bodily harm, thus taking the question away from the jury. Defendant asserts that whether bodily harm was sufficiently established was a question of fact for the jury to determine and an element of aggravated kidnapping that the State should have been required to prove beyond a reasonable doubt. Defendant emphasizes that he is not asserting that indecent liberties with a child cannot be the basis for finding that bodily harm occurred to support an aggravated kidnapping charge; instead, defendant is arguing that when indecent liberties with a child is involved, the issue is a question of fact and cannot be taken from the jury and decided as a matter of law. This court has not held as a matter of law that indecent liberties with a child constitutes bodily harm needed to establish that element for aggravated kidnapping. Although this court has found that proof of rape and sodomy are sufficient as a matter of law to establish bodily harm, this holding has never explicitly been extended to the offense of indecent liberties with a child. The State urges this court to adopt such a ruling, noting the similarities of rape, sodomy, and indecent liberties. Thus, the State asserts that “[rjegardless of whether the victim suffers actual physical injury, the act of fondling and licking a child’s genitalia constitutes bodily harm the same as rape or sodomy.” The State’s argument has some merit, but it does not consider the enormous variation in behavior that can constitute indecent liberties with a child. Indecent liberties with a child is defined at K.S.A. 1990 Supp. 21-3503(1) to include any of the following conduct with a child who is under 16 years of age: “(a) Sexual intercourse; or “(b) any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both; or “(c) soliciting the child to engage in any lewd fondling or touching of the person of another with the intent to arouse or satisfy the sexual desires of the child, the offender or another.” Here, the defendant was charged under subsection (b) as follows: “And between the 23rd day of October, 1989, A.D., and the 24th day of October, 1989, A.D., in the County of Sedgwick, and State of Kansas, one CLAYTON P. PELTIER did then and there unlawfully, willfully, lewdly fondle and touch the person of a child under the age of sixteen (16) years, to-wit: [K.T.], seven (7) years of age, date of birth: November 11, 1981, who was not married to the said [K.T.], with the intent in the said CLAYTON P. PELTIER to arouse or satisfy the sexual desires of the said [K.T.], or the said CLAYTON P. PELTIER or both.” Under the two types of indecent liberties described in subsections (a) and (b), it is obvious that some touching must occur between the victim and the defendant. If this touching is rape or sodomy, under prior Kansas case law these acts constitute bodily harm as a matter of law sufficient to support a conviction of aggravated kidnapping. The degree of touching that would constitute lewd fondling or touching under subsection (b), however, can vary tremendously. Placing a finger anywhere on a child’s body could conceivably constitute lewd fondling or touching, but arguably would not be an act of violence as contemplated by the legislature in imposing the increased punishment of aggravated kidnapping. The State correctly notes that disregarding the sanctity of a child’s body may cause humiliation and embarrassment similar to that suffered by victims of rape and sodomy. It is, however, difficult to always equate all acts that can constitute indecent liberties with a child to the violence that will always accompany rape or sodomy. The problem with the instruction given in this case becomes readily apparent when the third type of conduct constituting indecent liberties with a child is considered. Under this provision, asking a child to engage in conduct that would be considered lewd fondling and touching is indecent liberties with a child even though no touching occurs. To find that such solicitation constitutes bodily harm as a matter of law would go far beyond the requirement of physical touching in the intentional, hostile, and aggravated manner this court has consistently required. Such a conclusion would be contrary to our prior decisions, which required touching to establish bodily harm. Because of the variety of conduct that can constitute indecent liberties with a child, including solicitation, the district court should not have instructed the jury that, as a matter of law, indecent liberties with a child constitutes bodily injury necessary to establish this element of aggravated kidnapping. However, having found that the district court erred, the question remains whether this error requires that we reverse the defendant’s conviction of aggravated kidnapping. Errors that do not affirmatively cause prejudice to the substantial rights of a complaining party do not require reversal when substantial justice has been done. State v. Bell, 239 Kan. 229, 235, 718 P.2d 628 (1986). An error of constitutional magnitude cannot be held to be harmless unless the appellate court can declare beyond a reasonable doubt that the error had little, if any, likelihood of changing the results of the trial. State v. White, 246 Kan. 28, 37, 785 P.2d 950 (1990). Here, the complaint and Instruction No. 5 limited the jury’s consideration to whether the defendant committed indecent liberties, as defined under K.S.A. 1990 Supp. 21-3503(l)(b). Instruction No. 5 reads as follows: "The defendant is charged with the crime of Indecent Liberties with a Child. The defendant pleads not guilty. “To establish this charge each of the following claims must be proved: “1. That the defendant fondled or touched the person of [K.T.] in a lewd manner, with intent to arouse or -to satisfy the sexual desires of either or both; “2. That [K.T.] was then a child under the age of 16 years and not married to the defendant; and “3. That this act occurred between the 23rd and 24th day of October, 1989, in Sedgwick County, Kansas.” The evidence presented at trial did indicate that defendant touched the child in a lewd manner by rubbing her vaginal area with his fingers and licking her “private.” To find that Instruction No. 2 is harmless, this court must be able to declare beyond a reasonable doubt that the error in instructing the jury that indecent liberties with a child constituted bodily harm had little, if any, likelihood of changing the results of the trial. In other words, is it possible that if the district court had instructed correctly by defining bodily harm, the jury would have returned a verdict of kidnapping instead of aggravated kidnapping? We think not. We have repeatedly held: “Jury instructions are to be considered together and read as a whole, without isolating any one instruction. [Citation omitted.] If the instructions properly and fairly state the law as applied to the facts in the case, and if the jury could not reasonably have been misled by them, then the instructions do not constitute reversible error although they may be in some small way erroneous. [Citation omitted.]” State v. Morris, 244 Kan. 22, 23, 765 P.2d 1120 (1988). Here, defendant used physical force to touch this young victim in an intentional, hostile, and aggravated manner. He rubbed her vaginal area with his fingers and licked it with his tongue. He laid on top of her and his “private” touched hers. He also kissed her by inserting his tongue into her mouth. Instruction No. 5 clearly required the jury to find that defendant committed these acts in order to constitute indecent liberties with a child. The jury did so find by returning a güilty verdict of indecent liberties with a child against the defendant, and we have just determined that these acts are sufficient to support a conviction of aggravated kidnapping. We, therefore, conclude that the er roneous instruction did not prejudice the defendant and was harmless beyond a reasonable doubt because the error had little, if any, likelihood of changing the result of the trial. Finally, the defendant challenges the sufficiency of the evidence to support the verdict of sexual exploitation of a child. As we noted previously, the standard of review on appeal when sufficiency of the evidence is challenged is whether after a review of all of the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational fact-finder could have found the defendant guilty beyond a reasonable doubt. State v. Graham, 247 Kan. 388, 398, 799 P.2d 1003 (1990). The provisions of K.S.A. 1990 Supp. 21-3516 that define the conduct constituting sexual exploitation of a child cover three types of behavior, two of which are relevant here: “(1) Sexual exploitation of a child is: “(a) Employing, using, persuading, inducing, enticing or coercing a child under 16 years of age to engage in sexually explicit conduct for the purpose of promoting any performance; “(b) possessing any film, photograph, negative, slide, book, magazine or other printed or visual medium or any audio tape recording in which a real child under 16 years of age is shown or heard engaging in sexually explicit conduct with intent to arouse or satisfy the sexual desires or appeal to the prurient interest of the offender, the child or another.” Defendant was charged pursuant to K.S.A. 1990 Supp. 21-3516(l)(b) as follows: “[0]ne CLAYTON P. PELTIER did then and there unlawfully, willfully, possess a negative or film or a photograph in which a real child under sixteen (16) years of age, to-wit: [K.T.], date of birth: November 11, 1981, is shown engaging in sexually explicit conduct, and that such possession was done with the intent to arouse or satisfy the sexual desires or appeal to the purient [sic] interest of the offender, the child or another.” Defendant argues that he is charged “with possessing sexually explicit material of a child under subsection (l)(b) and not with employing or using a child to engage in sexually explicit conduct for the purposes of promotion under subsection (l)(a).” Defendant’s basic argument is that no evidence was presented that he possessed anything that showed a child engaging in sexually explicit conduct. He first argues that the term “film” used in the statute must refer to a moving picture and not undeveloped still photographic film. To support this argument, defendant points out that the listing of materials includes “film, photograph, negative, slide, book, magazine or other printed or visual medium.” According to defendant, the term “film” must refer to something other than the items already listed in the statute that relate to still photography, namely photographs, negatives, and slides. If not, under the statute one could possess motion pictures without violating the explicit terms of the statute. The fundamental principle of statutory construction requires words in common usage to be given their natural and ordinary meaning in arriving at a proper construction of the statute. Szoboszlay v. Glessner, 233 Kan. 475, 478, 664 P.2d 1327 (1983). The legislative intent and purpose behind the reason for enacting the statute controls when the intent can be ascertained from the language of the statute itself. See State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987). One of the meanings of the word “film” is “a thin flexible transparent sheet of cellulose acetate, cellulose nitrate, or other plastic material that is used for taking photographs and that is coated with a light-sensitive emulsion which when exposed and developed contains negative or positive images in black silver or in color.” Webster’s Third New International Dictionary 850 (1967). Another definition of “film” included in this dictionary is “motion picture.” Thus, the natural and ordinary meaning of the term “film” would include motion pictures as well as undeveloped still photographic film of real children engaging in sexually explicit conduct. Defendant further argues that, even if the word “film” is interpreted to include still photographic film, while in defendant’s possession this film was not developed and therefore did not show a child engaging in sexually explicit conduct. Only after the State developed the film into negatives did it for the first time reveal an image of a child engaging in sexually explicit conduct. The State then took these negatives and produced photographs that were distributed for exhibition purposes at trial. Defendant suggests that the State should have charged him with employing the child to engage in sexually explicit conduct for the purposes of promoting a performance, such as a photograph. According to defendant, because the possession of undeveloped film cannot constitute possession under subsection (b), the more appropriate charge would have been under subsection (a). The State counters that this interpretation of the statute is inconsistent with the legislative purpose of prohibiting child pornography. The State argues that the conduct the statute prohibits is not possession of undeveloped film, but use of children to obtain photographs. The fact that the chemical processing steps had not reduced the film to an actual photograph is not conduct that concerned the legislature. Instead, it is the recording of the images initially by using a child to portray sexually explicit conduct that the legislature sought to outlaw. We agree. We find that the undeveloped photographic film does come within the meaning of “any film” as set out in K.S.A. 1990 Supp. 21-3516(l)(b). The legislature clearly intended to prohibit the conduct that occurred here, and the fact that this film was undeveloped does not prohibit a conviction under 21-3516(l)(b). We conclude that the evidence was sufficient to support the defendant’s conviction of possession of sexually explicit material. The judgment of the district court is affirmed.	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The opinion of the court was delivered by Six, J.: This criminal case arises from a “reverse sting” drug operation. The case concerns the determination of probable cause during a preliminary hearing. The State appeals the preliminary hearing order of dismissal. Our jurisdiction is under K.S.A. 22-3602(b)(l). The trial court, at the conclusion of the preliminary hearing, dismissed the charges against defendant Terry L. Starks and Ricky L. Casey for possession of marijuana with intent to sell within 1,000 feet of an elementary or secondary school (K.S.A. 1990 Supp. 65-4127b[e]) and against Starks for conspiracy to sell marijuana (K.S.A. 21-3302 and K.S.A. 1990 Supp 65-4127b). We conduct a de novo review of the evidence when considering the trial court’s preliminary hearing probable cause finding. See State v. Green, 237 Kan. 146, 149, 697 P.2d 1305 (1985). We disagree with the disposition of the intent to sell charge. We agree that the dismissal of the conspiracy charge against Starks was proper. Facts Starks, Casey, and Jon A. Heter were charged with possession of marijuana with intent to sell within 1,000 feet of an elementary or secondary school (count I) and conspiracy to sell marijuana (count II). Their arrests were the result of a “reverse sting” operation conducted by the Reno County Drug Enforcement Unit and the Kansas Bureau of Investigation (KBI). A reverse sting occurs when law enforcement officials sell drugs to individuals who seek to purchase a large quantity for resale. Once the drugs are purchased from the undercover agent, the purchasers are arrested for drug possession, often with intent to sell. The reverse sting, in the present case, began when a confidential informant told a sheriff’s detective that Heter wanted to purchase a large quantity of marijuana. The KBI agreed to supply the marijuana. Special Agent Atteberry was sent to Hutchinson to act as an undercover agent. Atteberry and a confidential informant arranged a meeting with Heter at a Hutchinson motel. According to Atteberry, Heter and a drug connection originally planned to purchase five kilos of marijuana for the price of a quarter pound of cocaine and $1,500. Heter told Atteberry that he did not know if the connection could obtain the cocaine. Heter agreed with Atteberry to buy five kilos of marijuana for $7,500 ($1,500 per kilo). Heter then left to show the connection a sample of the marijuana, stating he would return in 15 minutes with the money to complete the transaction. He did not return. Atteberry later learned that Heter believed that there were undercover police around the motel. Atteberry met with Heter at Heter’s residence the following day. They agreed to complete the transaction that evening at the residence, which was located 96 feet from Liberty Middle School. Atteberry’s Testimony The State relied heavily on Atteberry’s testimony. Atteberry testified that Heter stated the connection did not have a driver’s license; consequently, another individual would drive the connection to Heter’s residence. According to Heter, a vehicle would pull all the way to the back of a neighbor’s driveway on the east and the connection would bring $9,000 to exchange for the marijuana. The connection did not want to meet Atteberry. The complex arrangements among Heter, the connection, and the driver were related by Atteberry. Heter planned on paying Atteberry $7,500 for five kilos of marijuana; however, the connection was told the price was $9,000. Heter wanted Atteberry to return $1,500 to him after the connection left. Heter and his connection intended to deceive the driver regarding the quantity of marijuana purchased. Atteberry testified: “Earlier, one of our conversations that Mr. Heter asked how much five kilos of marijuana weighed, and I replied eleven pounds. He believed it to be ten pounds. His deal with his connection was for ten pounds of marijuana for $9,000, so his intentions, what he stated was that he was going to cut one of the bricks in half and keep the one pound and him and his connection was going to meet later and split that one pound, but the connection did not want the driver of the vehicle to know that they were splitting the one pound up.” Atteberry also related Heter’s statements regarding the driver’s involvement: “He stated that, that as I stated earlier, that Heter replied that he was charging his buddy a little bit more and that they’re in it together on this, the driver and the connection. He says, I’m trying to make a little off it, and he’s trying to make a little off it, ’cause he stated he was selling, Heter was selling the marijuana to his connection for $9,000, and at that time the connection was selling some of this marijuana to the driver of the car.” Atteberry testified that: (1) Heter stated his connection was leaving for Texas the following day to sell the marijuana; (2) Heter intended to sell some of the marijuana to make money to fix up his car; and (3) marijuana was currently selling for $60 per quarter ounce or $200 per ounce in the Hutchinson area. The Reverse Sting While Atteberry, Heter, and the informant waited for the connection to arrive, Atteberry brought in five kilos of marijuana. Heter picked out one of the kilos, cut it in half, and placed one half kilo under his chair. The remaining four and one-half kilos were placed next to the chair. A brown Maverick, announced by its noisy muffler, pulled into the neighbor’s driveway on the east side of Heter’s residence. Heter went to the rear of the residence and returned to the living room carrying a large wad of money clutched with both fists. Heter and Atteberry began counting the money. The $9,000 cash pile had a strong odor of marijuana. Law enforcement officers, listening to the conversation over the informant’s body transmitter, moved in when they heard the money being counted. Heter was in the living room. A KBI agent testified that he observed a subject, identified as Casey, attempt to exit the back door of the residence. The agent illuminated Casey with a flashlight and ordered him into the house. Casey ran to the basement. Later, Casey informed the police officers that he was told to go to the basement and that he did not know what was going on. Casey had no driver’s license. Starks was slumped down low behind the wheel in the Maverick when apprehended. After being Mirandized, Heter agreed to talk to the police. According to police, Heter stated that he had spoken with Casey about the $9,000 and about buying the five kilos of marijuana. Casey came to Heter’s residence, brought $9,000, and the transaction took place. Heter claimed he was just the “middle man.” Starks, after being Mirandized, also agreed to talk to the police. According to police, Starks stated he (1) had no knowledge of any drug transaction; (2) was Casey’s friend; (3) had been called by Casey and asked for a ride; (4) picked up Casey and took him to Heter’s residence at Casey’s direction; (5) did not know Heter; and (6) did not notice Casey carry anything into the residence. Heter, Casey, and Starks did not testify at the preliminary hearing. Neither Casey’s nor Starks’ names were mentioned by Heter before the arrest. The State admitted that neither Casey nor Starks actually possessed the marijuana. The State argued that Casey and Starks aided and abetted Heter’s possession of marijuana with intent to sell and were criminally responsible under K.S.A. 1990 Supp. 21-3205. The trial court bound Heter over for trial on both count I (possession with intent to sell) and count II (conspiracy to sell). Casey was bound over for trial on count II. The trial court dismissed count I against Casey and counts I and II against Starks. The State then dismissed count II against Casey. Probable Cause If, from the evidence presented at the preliminary hearing, it appears that a crime has been committed and there is probable cause to believe the defendant committed the crime, the magistrate shall bind the defendant over for trial. K.S.A. 22-2902(3). See State v. Burrell, 237 Kan. 303, 305, 699 P.2d 499 (1985). “The evidence need not prove guilt beyond a reasonable doubt, only probable cause. The trial court must draw the inferences favorable to the prosecution from the evidence presented at the preliminary examination.” State v. Sherry, 233 Kan. 920, 935, 667 P.2d 367 (1983). “Probable cause at a preliminary hearing signifies evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused’s guilt.” State v. Puckett, 240 Kan. 393, Syl. ¶ 1, 729 P.2d 458 (1986). Count I — Possession of Marijuana With Intent to Sell The State argues that the trial court erred when it found insufficient evidence to establish probable cause that Starks and Casey aided and abetted Heter in possessing the marijuana with intent to sell. Starks argues that he did not know Heter and did not have any idea of the transaction among Heter, Casey, and Atteberry. Casey urges us to adopt the trial court’s reasoning, i.e., the evidence regarding Starks’ and Casey’s involvement supports Heter’s purpose in possessing the marijuana and not the State’s theory of aiding and abetting. The evidence presented at the preliminary hearing was sufficient to establish probable cause that Starks and Casey aided and abetted Heter in possessing the marijuana with intent to sell within 1,000 feet of an elementary or secondary school. The distance of 96 feet from Heter’s residence to Liberty Middle School is not contested. K.S.A. 1990 Supp. 21-3205(1) provides that a person is criminally responsible for a crime committed by another if the person charged intentionally aids, abets, advises, hires, counsels, or procures the other to commit the crime. Mere association with the person who commits the crime or mere presence in the vicinity is insufficient to establish guilt as an aider and abettor. However, when a person knowingly associates with an unlawful venture and participates in a way which indicates the person is willfully furthering the success of the venture, there is sufficient evidence of guilt to go to the jury. State v. Green, 237 Kan. 146, Syl. ¶ 4. Starks stated to the police officer that he: (1) simply gave Casey a ride to Heter’s residence; (2) did not know Casey and Heter were conducting a drug transaction; and (3) did not see Casey carry anything into the residence. Casey stated to police that he was told to go down in the basement and that he did not know what was going on. In contrast, Atteberry testified that Heter told him the driver and the connection were “in it together.” According to Heter, Casey planned to sell some of the marijuana to Starks. Casey and Heter did not want Starks to know that they were purchasing 11 pounds rather than 10 pounds. Atteberry also testified that Casey brought the money into Heter’s house in a large wad that smelled of marijuana. In addition, Atteberry testified Heter (1) told Atteberry he was selling the marijuana to Casey for $1,500 more than Heter paid; and (2) planned to sell his portion of the split one pound in order to have money to fix his car. The KBI agent testified that Starks was slumped down in the car seat and that Casey attempted to flee the residence. There is a conflict between the statements of Starks and Casey, and the testimony of Atteberry. Looking at all the evidence, viewed in the light most favorable to the prosecution, the evidence is sufficient to cause a person of ordinary prudence and caution to entertain a reasonable belief that Starks and Casey willfully furthered the success of Heter s possession of the marijuana with intent to sell. The jury could find that Casey knowingly provided the money necessary for Heter to possess the marijuana with intent to sell and that Starks knowingly provided the transportation. Count II, Conspiracy to Sell Marijuana K.S.A. 21-3302(1) provides: “A conspiracy is an agreement with another person to commit a crime or to assist to commit a crime. No person may be convicted of conspiracy unless an overt act in furtherance of such conspiracy is alleged and proved to have been committed by him or by a co-conspirator.” The State contends that the trial court improperly weighed the evidence, finding it “too thin” to bind Starks over on count II. The State argues that Atteberry’s testimony provides sufficient evidence that Starks was involved in the agreement between Casey and Heter to sell marijuana. Starks counters that the evidence was insufficient to support a finding of probable cause that Starks was involved in the agreement. A review of the evidence indicates that Starks did not enter into an agreement to sell marijuana. Atteberry testified that Heter told him Starks and Casey were in it together. Starks planned on purchasing some of the marijuana from Casey. There was no testimony concerning either the quantity Starks intended to purchase or what Starks intended to do with the marijuana after the purchase. There was no testimony that Starks knew what Casey intended to do with the marijuana. The only evidence of an agreement involving Starks relates to his intention to purchase an unknown quantity from Casey. The evidence is not sufficient to establish probable cause of an agreement to sell marijuana. We affirm the trial court’s dismissal of the count II charge against Starks for conspiracy to sell marijuana (K.S.A. 21-3302 and K.S.A. 1990 Supp. 65-4127b). We reverse the trial court’s dismissal of the count I charges against Starks and Casey for possession of marijuana with intent to sell within 1,000 feet of an elementary or secondary school (K.S.A. 1990 Supp. 65-4127b[e]). Affirmed in part and reversed in part. The case is remanded with directions to reinstate the charges against Starks and Casey for possession of marijuana with intent to sell within 1,000 feet of an elementary or secondary school, to arraign them, and for further proceedings in conformity with this opinion.	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The opinion of the court was delivered by McFarland, J.: Earl E. Wilburn appeals his jury trial convictions of first-degree murder (K.S.A. 21-3401) and second-degree murder (K.S.A. 21-3402). The two claims of error are the trial court’s failure to instruct the jury on: 1. diminished capacity not amounting to insanity; and 2. involuntary manslaughter. By virtue of the issues raised, the facts must be set forth in considerable detail. Defendant and Cathy Wilburn had a lengthy and troubled marriage. Cathy had filed for divorce five times. A divorce was granted on the fifth petition. There was evidence that defendant had threatened to kill Cathy and her lover, Lyle Crowley, while the divorce was pending. Earl was under a restraining order not to bother Cathy. Earl had residential custody of the two children born to the marriage, Mindie (age 11) and Michael (age 7). On August 23, 1989, defendant drove his pickup truck to Cathy’s residence in Atchison. The two children accompanied him. Cathy was not at home and defendant drove to the residence of mutual friends, Ron and JoAnn Lawless. Several adults were present in the front yard where a whiffle ball game was in progress. Lyle Crowley was playing in the game while Cathy watched from the patio. Defendant let the children out and they went over to visit their mother. Defendant remained in the truck and drove it a short distance away. Later, he returned and pulled up in front of the Lawless residence, and the children returned to the truck. The three drove away, but turned around and returned. Earl again parked in front of the residence. Defendant got out of the vehicle and motioned for Cathy to come over, but she refused. Earl reached into the vehicle, pulled out a shotgun, and shot Lyle Crowley, who was near the truck. Cathy started running to the victim and the defendant shot her. Defendant then shot the fallen Lyle in the back, turned, and shot Cathy. He got back in the truck with the children and drove to his sister’s house. He then drove to his own home, surrendering to the police after a 4V2 hour siege situation. Both victims died as a result of their wounds. Defendant’s version of events is as follows. Earlier in the day in question, he had followed Cathy and had caught up with her on the River Road. Defendant removed the vehicle tags from Cathy’s automobile. There was an argument about the children. While defendant and Cathy were stopped on the River Road, Lyle Crowley drove up and stopped. Defendant stated Lyle told him he was going to sexually molest defendant’s daughter Mindie. Defendant testified that while he was stopped in front of the Lawless residence the last time, the whiffle ball struck his vehicle and Lyle had come to retrieve the ball. While there, Lyle had repeated his earlier threat relative to Mindie. Defendant testified he “snapped” and had no recall of the shootings. There was also evidence that no conversation occurred at the truck between defendant and Lyle except for defendant saying, “Good-by Lyle” just before the shooting. Additionally, there was evidence defendant took the cover off of the shotgun while the children were in the Lawless yard talking with their mother. Defendant was charged with two counts of first-degree murder. He filed a notice of intent to rely on an insanity defense, which defense was abandoned at trial. He was convicted of first-degree murder relative to the slaying of Lyle Crowley and of second-degree murder (a lesser included offense instruction) for the slaying of Cathy. The trial court had also instructed on voluntary manslaughter as a lesser included offense in the two counts. Other facts will be set forth as necessary for the discussion of particular points. DIMINISHED CAPACITY Defendant requested that an instruction be given on diminished capacity. The trial court denied the request on the basis that the same was unnecessary as the defendant had abandoned his insanity defense. In a criminal action, a trial court must instruct the jury on the law applicable to the theories of all parties where there is supporting evidence. When considering the refusal of a trial court to give a specific instruction, the evidence must be viewed by the appellate court in the light most favorable to the party requesting the instruction. State v. Hunter, 241 Kan. 629, Syl. ¶¶ 8, 9, 740 P.2d 559 (1987). In support of his argument herein, defendant relies on testimony of his sister that shortly after the dual slayings, defendant was wild, his eyes were fiery, and he looked out of control. Defendant’s father and uncle (who had contact with defendant while police were trying to get him to surrender) testified defendant did not act stable. A psychologist, who was a neighbor of defendant, testified the shotgun slayings were out of character for the defendant. Additionally, defendant relies on the testimony of two staff members of the State Security Hospital at Larned. They are Dr. J. Lalith Fernando, a psychiatrist, and Thomas Runge, a psychologist. Defendant characterizés their testimony as being to the effect defendant did not intend or plan to kill the victims. This characterization is broader than their actual testimony. Defendant had been sent to the Larned facility for an evaluation relative to his intended insanity defense. The result of the evaluation was that defendant was not legally insane under the M’Naghten rule. After testifying to the evaluation team’s finding that defendant was not legally insane, Dr. Fernando was asked about the fact defendant had steadfastly maintained he had no recall of the actual killings. Dr. Fernando testified he was of the opinion defendant was not faking his lack of recall — he truly did not remember. The following questions and answers then occurred: “Q. [Defense counsel] And, Doctor, it is also your opinion that — and we have talked about this — that when you say the loss of control to such an incident that he did something he never intended to do, that being the shooting, that is your opinion too, is it not, Doctor? .“A. Yes, I need to explain that a little further. I am not saying that he never intended to do that. I am assuming that, you know, that was an explanation to try and find out why he lost that memory. That is the explanation that I am giving, that as I said, that a possibility that I saw him that I saw many things that could have happened. One of the things is that is something he never wanted to do, but he did it, and he just wants to cut it away from his mind. So he’s denying it himself. So you lose the memory, that’s one of the aspects of this amnesic phases.” Dr. Fernando then discussed defendant’s emotional distress over the breakup of his marriage and concluded he finally “snapped.” On cross-examination by the State, the following questions and answers occurred: “Q. [The State] .... And as I understand your testimony, there is a possibility, and it does happen from time to time, that people fake memory loss? “A. Yes, they do. “Q. Doctor, one of the things that just confuses me just a little bit or puzzles me a little bit [is] you are saying that one of the possibilities for the memory loss is that he did something- — -that he did something he never really meant to do, is that correct? "A. Yes. “Q. That is a possibility? “A. Yeah. “Q. But even though that may be a possibility, that he did something he didn’t mean to do, you are talking in terms of general senses, that he really loved his wife, why would he kill her? “A. That is correct. “Q. It has nothing to do with Mr. Crowley, does it? “A. I shouldn’t think so. “Q. And if he loved his wife and she [now has a] boyfriend, he would have every reason to want to kill her under the same theory? “A. I don’t know that I’m in a position to comment on that, but I was just trying to find a cause of what to explain. My sole role was clinical, trying to find out why this man has memory loss, so that’s why all this explanation there. So I am not in a position to explain as to what happened or what he had in his mind about his wife. I was just taking the facts into consideration. That’s all. “Q. It is, though, your thoughts, or your conjectures, to try and explain this memory loss, correct? “A. These things that were taken from the books, really and tried to explain that, yeah. “Q. But the bottom line that really concerns this jury is the fact that he was not suffering from some mental disorder? “A. No. “Q. And that he understood the difference between right and wrong? “A. Yes. “Q. And, therefore, he is not insane? “A. No. “Q. And he is criminally responsible for the acts that he did on August 23, 1989? “A. Yes, that’s what the M’Naghten is all about.” Dr. Fernando was called to testify about whether or not defendant’s memory loss was genuine. He concluded that it was and speculated about the causes thereof. This led to further speculation as to why defendant killed the two victims. But it appears quite clear the doctor was not expressing an opinion that defendant was suffering from a mental disorder or lacked criminal responsibility for his acts. Mr. Runge’s testimony is along similar lines. The defendant truly did not remember killing the victims and was not faking his amnesia. Mr. Runge is then, also, drawn into speculation about why defendant killed the people and concludes he was under emotional pressure and snapped. The following questions and answers occurred: “Q. [Defense counsel] And this would have been generally he was dependent upon Cathy and he was dependent upon his children, is that what you’re saying? “A. Yes, that’s quite evident in looking over his history of the times they divorced or planned on getting divorced back together, together again, it’s pretty evident it was a life long pattern of function, was indicative of dependency. “Q. And is the opinion of the staff and is it your opinion that nothing is certain, to him, but in your opinion that on the day in question, Earl lost his? “A. Yes, I would say it was. “Q. And instantaneous loss as a result of a build up of all these pressures? “A. Yeah, there’s no evidence to indicate that we had available to us to indicate that he had planned all this. What was evident to us the thing just happened. “Q. Just happened, just a build up and all of a sudden? “A. Yes. “Q. Bang, bang, bang, bang? “A. Yes, sir.” On cross-examination, the following questions and answers occurred: “Q. [The State] If you were made aware that his daughter gave a statement that said that when she returned to the vehicle after a visit with [her] mother and found that the gun had now been taken from underneath the seat and now was laying on the seat, in [an] uncased position, would that indicate to you maybe there was a little bit more planned about this? “A. I couldn’t really judge on that on face value, I don’t think. It depends on when he had enough. You know, in my opinion, you know, it was something that occurred [due to] a lot of stress and things he just couldn’t cope with. The fact that he took a gun out of a case, set it in the truck, you know, that would, you know, no doubt raise an issue that maybe it was more thought of than that, but there’s no way. to tell that without actually having [been] there and witnessed it. “Q. Now, I guess when we get down to the bottom line is you’ve indicated that perhaps he snapped or lost his as being a possible explanation for his memory loss and for what he did, is that correct? “A. Yes. “Q. But that’s not a legal defense, is it? “A. Not that I’m aware of, no. “Q. Not in Kansas? "A. No. “Q. It boils down to this, it’s still under your opinion and the opinion of the psychiatric staff is that he’s not suffering from some mental disorder such that he could not distinguish right from wrong? “A. No, sir, he is not. “Q. And therefore, he had culpability, and he should be responsible for the actions that he did on August 23, 1989? “A. Yes, sir. “Q. In a legal sense? “A. Yes, sir. “Q. In a mental illness sense? “A. Yes, sir.” In State v. Grauerholz, 232 Kan. 221, 229, 654 P.2d 395 (1982), we rejected a claim that the jury should have been instructed on diminished capacity, saying: “We should point out that evidence of one’s mental state is admissible on the subject of intent, and the defendant was permitted to introduce all of the evidence he wished, in order to show his mental capabilities throughout the period involved herein. The ultimate issue, however, is that posed by the M’Naghten test, and the jury was properly and fully instructed in that regard. By its verdict, the jury found that the defendant knew that it was wrong when he diverted funds from the Wark and Patterson estate accounts into his own; in short, the jury rejected the proffered insanity defense. “As indicated earlier in this opinion, a guardian and conservator was appointed for the defendant in 1981. The guardian-conservator was granted leave to file a brief, and did so. He points to the following language from Syl. ¶ 2 of our opinion in State v. Dargatz, 228 Kan. 322, which reads: ‘Although a mental illness or defect not amounting to legal insanity is not a defense, since, for purposes of the capacity to commit crime, degrees of mental abnormality are not recognized, where the crime charged requires a specific intent, evidence of a mental defect which negates the specific intent is admissible.’ He then argues that the jury should have been given a special instruction on diminished capacity. Not so. In the Dargatz opinion, at page 332, we said: ‘The doctrine of diminished mental capacity, while never specifically rejected by this court, is inconsistent with the law of this state and toe decline to adopt it.’ (Emphasis added.) As we said in the Dargatz syllabus, evidence of mental defects is admissible; but the instruction now proposed by the guardian-conservator is not the law of this state and should have been rejected if it had been proposed at trial.” In State v. Jackson, 238 Kan. 793, 798, 714 P.2d 1368, cert. denied 479 U.S. 821 (1986), this court reviewed the law concerning diminished capacity and concluded that such an instruction may be given: “Evidence of diminished capacity is admissible only for the limited purpose of negating specific intent and is not a substitute for a plea of insanity. Where insanity is relied upon, the jury must first determine that issue. If it finds the defendant sane, it may then consider, where appropriate, evidence of diminished capacity as a defense to a crime requiring proof of a specific intent. Whether the jury should be instructed on diminished capacity is left to the sound discretion of the trial court.” In State v. Maas, 242 Kan. 44, 51-53, 744 P.2d 1222 (1987), we said: “The second issue raised on the appeal is that the trial court erred in failing to give the defendant’s requested instruction on diminished capacity. The defendant argues that four of the charges against him were specific intent crimes. The medical experts who testified on behalf of both the State and the defense disagreed as to whether the defendant was legally insane, but agreed that the defendant was severely depressed at the time the offenses were committed. “Although the trial court refused to give an instruction on diminished capacity, it permitted defense counsel to argue to the jury that defendant’s diminished capacity precluded the defendant from forming the specific intent required for certain crimes. The jury was fully instructed on the lesser included offenses. “This court’s position on diminished capacity was discussed in depth in State v. Jackson, 238 Kan. 793, 714 P.2d 1368 (1986). In Jackson, it was held that evidence of diminished capacity is admissible for the limited purpose of negating specific intent, but that the trial court is not required to give an instruction on diminished capacity. In the present case, the district court gave the insanity defense instruction, but rejected the defendant’s request for a diminished capacity instruction. It instructed the jury on all of the lesser included offenses involved in the specific intent crimes. We have concluded that the district court did not commit error in refusing to provide the jury with a diminished capacity instruction. Such a holding is entirely consistent with the rulings of this court in State v. Jackson and the other cases cited therein. However, a majority of the court is of the opinion that it would be better practice for the trial court to give an instruction on diminished capacity where such an instruction is reasonably necessary to inform the jury of the effect of a defendant’s diminished capacity on the specific intent required for the crime charged. Until the Pattern Instruction Committee of the Judicial Council has provided such an instruction, an instruction in the following form would be appropriate: ‘Diminished mental capacity of the defendant not amounting to insanity is not a complete defense to a criminal charge, but when a particular intent or other state of mind is a necessary element of the offense charged, diminished mental capacity may be taken into consideration in determining whether the accused was capable of forming the necessary specific intent or state of mind.’ ” In summary, the criminal law concept of diminished capacity requires the presence of a mental disease or defect not amounting to legal insanity which a jury may consider in determining whether the defendant has the specific intent required for the crime charged. Mere personality characteristics such as poor impulse control, a short temper, frustration, feelings of dependency, “snapping,” lack of concern for the rights of other people, etc., do not constitute a mental disease or defect bringing the doctrine of diminished capacity into play. Under the facts before us, evidence of diminished capacity was lacking. Evidence that defendant became frustrated over his marital problems, lost control, snapped, etc., go to personality characteristics and reactions to events rather than any underlying mental disease or defect. Even had evidence of diminished capacity been presented, the giving of an instruction thereon is not required and is a matter of trial court discretion. The trial court stated it would not give a diminished capacity instruction because the insanity defense had been abandoned. Although generally an insanity defense is likely to be present in a case where diminished capacity is asserted, there is no requirement therefor. The complete defense of insanity does not have to be asserted in order to claim diminished capacity. The judgment of a trial court, if correct, is to be upheld even though the court may have relied upon a wrong ground or assigned an erroneous reason for its decision. Sutter Bros. Constr. Co. v. City of Leavenworth, 238 Kan. 85, Syl. ¶ 4, 708 P.2d 190 (1985). See Dearborn Animal Clinic, P.A. v. Wilson, 248 Kan. 257, Syl. ¶ 6, 806 P.2d 997 (1991). We find no error or abuse of discretion in the trial court’s failure to instruct the jury on diminished capacity. INVOLUNTARY MANSLAUGHTER K.S.A. 21-3107(3) provides: “In cases where the crime charged may include some lesser crime, it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced. If the defendant objects to the giving of the instructions, the defendant shall be considered to have waived objection to any error in the failure to give them, and the failure shall not be a basis for reversal of the case on appeal.” In State v. Dixon, 248 Kan. 776, Syl. ¶¶ 1, 2, 811 P.2d 1153 (1991), we held: “A trial court has the affirmative duty to instruct the jury on all lesser included offenses established by the evidence. Instructions on lesser included offenses must be given even though the evidence is weak and inconclusive and consists solely of the testimony of the defendant. An instruction on a lesser included offense is not required, however, if the evidence at trial excludes a theory of guilt on the lesser offense. The duty of the trial court to instruct on the lesser included offense is applicable only when the evidence introduced at the trial is such that the defendant might reasonably have been convicted of the lesser offense.” “When the trial court refuses to give an instruction on a lesser included offense, the appellate court must view the evidence supporting the lesser charge in the light most favorable to the party requesting the instruction.” The defendant argues it was error for the trial court to fail to instruct the jury on involuntary manslaughter as a lesser included offense of first-degree murder. The crime of involuntary manslaughter is set forth in K.S.A. 21-3404 as follows: “(a) Involuntary manslaughter is the unlawful killing of a human being, without malice, which is done unintentionally in the wanton commission of an unlawful act not amounting to felony, or in the commission of a lawful act in an unlawful or wanton manner. “(b) As used in this section, an ‘unlawful act’ is any act which is prohibited by a statute of the United States or the state of Kansas or an ordinance of any city within the state, which statute or ordinance is enacted for the protection of human life or safety. ” It is uncontroverted defendant was in close proximity to his victims when all four shots were fired. There is no claim the shotgun discharged accidentally on any of the four occassions. In order to support involuntary manslaughter, the killing must be done unintentionally in the wanton commission of an unlawful act not amounting to a felony, or in the commission of a lawful act in an unlawful or wanton manner. Defendant does not even suggest in his brief what unlawful act (not amounting to a felony) or what wanton lawful act the jury could have found he was committing when he was shooting each victim twice. Involuntary manslaughter simply does not fit any evidence in this case or any logical inferences arising therefrom. We find no error in the trial court’s failure to instruct the jury on involuntary manslaughter. The judgment is affirmed.	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The opinion of the court was delivered by Allegrucci, J.: This is an appeal from an order entered by the district court disqualifying Mark G. Ayesh, Esq., and his law firm of Ayesh, Herd & Theis, from representing the estate in this case. Ayesh was disqualified pursuant to Rule 1.9(a) (1990 Kan. Ct. R. Annot. 235) of the Model Rules of Professional Con duct (MRPC), Supreme Court Rule 226 (1990 Kan. Ct. R. Annot. 210). The district court also disqualified Ayesh from further representation of the estate pursuant to MRPC 3.7 (1990 Kan. Ct. R. Annot. 267) and DR 5-102 (1990 Kan. Ct. R. Annot. 184). Insurance Management Associates, Inc., (IMA) is a Kansas corporation engaged in business as an insurance agency. Paul C. Yankey, Jr., was the first president of IMA and the second largest individual shareholder from its formation on January 1, 1974, until his death on June 14, 1986. In May 1984, the board of directors (Board) of IMA designated Yankey to draft a new stock purchase agreement between IMA and its shareholders. The Board authorized Yankey to employ counsel to assist in this drafting. In early July 1984, Yankey contacted Malcolm Miller to draft the new agreement. Miller and Yankey then retained Ayesh the same month to assist in drafting the agreement. Ayesh subsequently prepared a memorandum discussing the proposed agreement. Miller asked Ayesh to draft the same memorandum in a more formal fashion for circulation among shareholders of IMA. A memorandum dated July 19, 1984, proposed a general outline for the stock purchase agreement, and Ayesh knew that this memorandum would be distributed to the Board, which occurred at the July 30, 1984, board meeting. The Board knew that Yankey was working with Miller in drafting the agreement but was not aware that Yankey and Miller had hired Ayesh to assist. From July to early October 1984, Ayesh worked on the proposed stock purchase agreement concerning the repurchase of stock from any IMA stockholder upon his or her disability, retirement, or death. He prepared the initial draft on his word processor, but numerous subsequent drafts were prepared by IMA. Ayesh testified at the hearing on the motion to disqualify that he considered Yankey to be his client during the drafting of the agreement but also acknowledged that he had a professional responsibility to draft the agreement for the benefit of all shareholders of IMA, not just Yankey. Ayesh believed his job was to make sure the agreement complied with the shareholders’ objectives from a technical and tax standpoint. In his deposition, Ayesh testified that he understood he was to be Yankey’s “drafter and technical adviser from a tax standpoint on the composition of the agreement.” But Ayesh recognized that, through Yankey, he was “in effect, representing all of the parties to the shareholder agreement or to the stock purchase agreement.” Ayesh’s billing statement for his work on the agreement was on his letterhead and delivered to Miller, but it was not specifically addressed to anyone. It contained a statement for “legal and tax services for 1984” based on 108 hours’ work on the agreement, resulting in a total bill of $11,500. On December 11, 1984, Ayesh received a check from an account of IMA in the amount of $11,500. The check reflects a handwritten note initialed by Yankey, indicating “OK to pay. Tax work and drawing of stock purchase agreement.” Later, Ayesh received a stock purchase agreement dated February 19, 1985, which was executed by all shareholders of IMA. This agreement is identical to the December 1, 1984, “final draft” except for two differences, including one additional predicate paragraph in the preamble and alteration of the age of a shareholder when the stock repurchase obligations of IMA commence. Yankey died on June 14, 1986. Upon his appointment as executor, Miller retained Ayesh as counsel to the estate. Ayesh filed a petition for probate of will on June 30, 1986. On February 3, 1987, IMA delivered the 1986 year-end financial statements for IMA to Miller as executor for the Yankey estate. This was the basis for the appraisal used to value IMA stock for repurchase from Yankey’s estate. On February 9, 1987, Miller met with defendant Moddrell to discuss why life insurance proceeds received by IMA after Yankey’s death were not reflected on the financial statements as an asset of the company. Following this meeting, IMA consulted with counsel at the Foulston & Siefkin law firm. Appraisals, which were based on the 1986 year-end financial statements, were delivered to Miller on March 25, 1987. A check for the purchase of Yankey’s stock based upon the appraised value of IMA stock on December 31, 1986, was delivered to Ayesh on March 31, 1987. Miller and Ayesh rejected the value determined by the appraisers and claimed that life insurance proceeds should have been added to the net worth of IMA. Miller and Ayesh also claimed that the Board improperly manipulated the company’s books to depress that value. Ayesh asserted and testified that, during the drafting of the stock purchase agreement, Yankey had advised Miller that the parties to the agreement decided that the proceeds of the key-man life insurance obtained to fund the purchase of stock under the agreement would be included in IMA’s net worth to increase the appraised value of IMA. Ayesh further testified that the agreement was intentionally left silent regarding the treatment of life insurance proceeds because generally accepted accounting principles would control IMA’s treatment of the insurance proceeds and create this result. This position is directly contrary to defendants’ assertion that they intended the opposite treatment of the key-man life insurance proceeds. Defendants Cohen and Lukens allege that Yankey had told them that life insurance proceeds would not be included in the appraisal of IMA under the agreement. This assurance was consistent with IMA’s purpose and intent to buy life insurance for the sole purpose of binding the purchase of the stock, not to increase the value of IMA. In its findings of fact, the district court stated: “29. The interpretation of the agreement asserted by the Estate is directly contrary to the testimony of the defendants regarding the intent of the parties to the agreement and the defendants’ interpretation thereof. The testimony and exhibits presented at the hearing established that Mr. Ayesh provided substantive legal advice and services in drafting the agreement for IMA and its shareholders as to matters directly in issue in this case. Mr. Ayesh was more than a mere scrivener and considered himself to be providing tax and business type legal advice on the structure of the agreement. Specifically, with regard to the life insurance proceeds, Mr. Ayesh has testified that he is the person who first brought up the subject with Mr. Miller and that Mr. Miller was to find out how the shareholders wanted to treat life insurance proceeds in the agreement. Although Mr. Ayesh did not personally talk to the shareholders, Mr. Miller is alleged to have raised the issue with Mr. Yankey, at Mr. Ayesh’s request, and Mr. Ayesh has testified that Mr. Miller advised him the shareholders of IMA had decided not to address life insurance in the agreement. Mr. Ayesh has testified the agreement was, therefore, left silent on the treatment of insurance proceeds. Because the agreement is silent on this issue, it is likely that evidence will be presented at trial regarding the intent of all of the parties involved in the drafting [of] the agreement, including Mr. Ayesh and Mr. Miller.” In a settlement proposal dated October 23, 1989, Ayesh and his cocounsel Frederick Dorwart, of Tulsa, Oklahoma, requested, for the first time, that IMA consent to Ayesh’s serving as trial counsel for the estate. On January 12, 1990, defendants requested that Ayesh voluntarily withdraw from his representation of the estate, based upon his violation of MRPC 1.9 and his position as a witness relating to the controversy. Ayesh refused, and defendants filed the motion to disqualify. The district court concluded that the evidence presented at the hearing and exhibits admitted by the parties established the existence of an attorney-client relationship between Ayesh and IMA and its stockholders in the drafting of the stock purchase agreement. The district court rejected Ayesh’s argument that he was a mere technical adviser in drafting the agreement because he had been actively involved in the actual drafting and allegedly raised the issue regarding valuation of life insurance proceeds. Ayesh also allegedly obtained information about the intent of all the parties to the agreement. Because the interpretation of the agreement and the intent of the parties were substantially related, the interests of the estate and the defendants were materially adverse. The court concluded: “Defendants by proof of high quality, have met their burden of proving the elements of a violation of Rule 1.9 by Mr. Ayesh. Mr. Ayesh did not consult with his former clients as required by Rule 1.9 and did not receive the consent of his former clients to his representation of the Estate in this matter. He failed to even request consent in any form until October 1989.” The district court also concluded that Ayesh’s involvement in drafting the agreement made him a material witness to disputed facts and required his disqualification from further representation of the estate, pursuant to MRPC 3.7 and DR 5-102. The court ordered that Ayesh and the firm of Ayesh, Herd & Theis were disqualified from further representation of the estate, were required to remove all files relating to the litigation from Ayesh’s office, and were to deliver all original file materials to defendants’ counsel of record. After the trial court entered its findings of fact and conclusions of law disqualifying Ayesh and his firm, a motion for reconsideration or alteration was filed. This was considered by the court at a hearing on June 1, 1990; no one appeared on behalf of the estate. The court granted correction of a clerical error in the case number of the estate’s probate action but denied the remainder of the motion to reconsider the court’s prior order disqualifying Ayesh. A notice of appeal concerning the order of disqualification was filed by Ayesh on June 29, 1990. The estate did not appeal from the order of disqualification and is not named as a party in the notice of appeal filed by Ayesh. During the pendency of this appeal, the underlying litigation between the estate and IMA was settled. On January 22, 1991, a journal entry of dismissal with prejudice was filed, granting the joint motion of plaintiff Miller as executor for the estate of Yankey and the defendants to dismiss this action with prejudice. Defendants subsequently filed a motion to dismiss this appeal on three procedural grounds: (1) Ayesh and his firm lacked standing and were not proper parties to the appeal; (2) the disqualification order was not appealable as a final order and appellants Ayesh, Herd & Theis did not properly perfect an interlocutory appeal; and (3) the case was moot since the underlying litigation had been settled. The Court of Appeals denied this motion “with leave to reassert arguments in brief on the merits.” Defendants have asserted the arguments raised in this motion in their brief, incorporating by reference the motion and memorandum in support thereof. A number of issues are raised by appellants relative to the district court’s order of disqualification. However, we first consider whether this appeal should be dismissed as moot because the parties to the lawsuit have reached a settlement on the underlying case. As previously noted, a journal entry was filed in district court dismissing this action with prejudice upon the request of both the estate and defendants. Therefore, if Ayesh and his firm are successful in establishing that the disqualification order was inappropriate, they have no clients to represent in an action below. This court recently discussed the principles underlying mootness in State ex rel. Stephan v. Johnson, 248 Kan. 286, 807 P.2d 664 (1991). Johnson was a quo warranto action to remove defendant from the office of board member of the Kansas State Board of Education. The district court granted the State’s motion for summary judgment, and the Court of Appeals affirmed. After this court granted review, Johnson was defeated in his primary election and subsequently resigned from his position with the Board. In his appeal, Johnson challenged the constitutionality of K.S.A. 25-1904, which prohibits a state employee from serving as a member of the Kansas State Board of Education. Johnson, who was a faculty member at Wichita State University, was prohibited by 25-1904 from serving on the Board. After discussing at length the rules adopted by this court concerning mootness, this court concluded that the issues raised by respondent in the appeal were moot because he had resigned his position and gave no indication of a desire to seek that office again. This court in Johnson noted the well-established rule that the appellate courts will not consider or decide a question on appeal when it appears that any judgment that might be rendered would be unavailing. 248 Kan. at 288. See Dickey Oil Co. v. Wakefield, 153 Kan. 489, 111 P.2d 1113 (1941). A controversy must exist that requires adjudication instead of an abstract proposition that requires an advisory opinion. In support of their argument that this case is moot, defendants cite several Kansas decisions in which the parties settled the case, making the issue moot and requiring dismissal of the action pending on appeal. Perrine v. Perrine, 144 Kan. 219, 58 P.2d 1080 (1936), involved an action among cotenants to partition real property. Defendant filed a cross-petition seeking specific performance of an alleged agreement with plaintiffs to buy their interest in the property. After a demurrer to the cross-petition was sustained, the parties settled their controversy in writing and agreed that judgment should be entered. When defendant then attempted to appeal the order sustaining the demurrer, the appellate court held that the settlement precluded him from prosecuting his appeal. The court stated: “This appeal should be dismissed for the reason that after the ruling of the court of which appellant now complains he entered into an agreement with the other parties to the action by which all controversies between the parties which had arisen in this litigation were compromised and settled; the rights of the respective parties were agreed to, and it was further agreed what judgment the court might enter in the cause, and such judgment has been duly entered. This appellant is in no position to say that some controversy involved and previously considered in that litigation is now open to review.” 144 Kan. at 223. ,. An order of contempt was appealed in Guerrero v. Capitol Federal Savings & Loan Ass’n, 197 Kan. 18, 415 P.2d 257 (1966). Appellant Manzanares was in civil and direct contempt for failure to comply with the previous order to transfer the amount of a savings account, the ownership of which was being controverted, to the jurisdiction of the court. In punishment for the contempt, Manzanares was sentenced to confinement in the county jail until he purged himself. When he applied for release from the court, he transferred the amount of funds ordered by the court into a joint control account held by the clerk of the court and Manzanares. This court found that, by the transfer of these funds, he purged himself of any possible contempt and left nothing upon which this court’s judgment might act. Therefore, the question raised in the appeal was academic, and this court declined to review a question that no longer existed. 197 Kan. at 22. In Bair v. Bair, 242 Kan. 629, 750 P.2d 994 (1988), appellant appealed from an order of the district court finding appellant in contempt of court. On appeal, this court noted that the order was no longer in effect and the appellant had “technically” purged himself of contempt. In holding the appeal moot, we said: “The general rule on mootness was recently restated as follows: “[I]t is the duty of the courts to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles which cannot affect the matter in issue before the court.” ’ Kimberlin v. City of Topeka, 238 Kan. 299, 301, 710 P.2d 682 (1985) (quoting City of Roeland Park v. Cross, 229 Kan. 269, 270, 623 P.2d 1332 [1981]). “Having determined that the order appealed from is no longer valid, the appeal therefrom is moot. There is no judgment this court could make as to the July 27, 1984, order which would in any way affect the present or future rights or obligations of the parties.” 242 Kan. at 632. In NEA-Topeka, Inc. v. U.S.D. No. 501, 227 Kan. 529, 531-32, 608 P.2d 920 (1980), the district court found prohibited practices occurred during negotiations to reach a professional agreement acceptable to the bargaining units. By the time this court considered the appeal, negotiations were over, and contracts were issued, accepted, and ratified. All questions involved in the appeal were moot. This court held it had no power to render advisory opinions, either under a statutory provision or a constitutional provision; an attempt to do so would violate the separation of powers doctrine. 227 Kan. at 531. Appellants respond that defendants have not established that an appellate decision here would be); ineffectual. In State ex rel. Stephan v. Pepsi-Cola Gen'l Bottlers, Inc., 232 Kan. 843, 844, 659 P.2d 213 (1983), this court stated that the Supreme Court would not decide questions when decisions are not applicable to actual controversies and judgment would be unavailing. Yet, an appeal would be dismissed only when it clearly and convincingly appears that an actual controversy has ceased and the only judgment that could be entered would be ineffectual for any purpose. Appellants argue that this appeal should not be dismissed because the judgment affects the rights of the person against whom it was rendered, Ayesh, even if the different decision would not be directly enforceable. In support of their argument, appellants cite Moore v. Smith, 160 Kan. 167, 170-71, 160 P.2d 675 (1945), which we discussed at length in Johnson, to point out the generally accepted principles about mootness. Smith had been nominated in the primary election to serve as sheriff for an “unexpired” or “short term.” In the general election, Moore was elected sheriff for the regular two-year term beginning in January. Moore brought an action to enjoin the county commissioners from certifying Smith as sheriff for the “unexpired” term, which expired by the time the appeal was considered. We stated: “A ‘moot case’ has been variously defined. One common definition is that it is a case in which determination of an abstract question is sought when in reality there is no actual controversy existing. Another common definition is that it is one which seeks a judgment upon some matter which if rendered could not have any practical effect upon any then-existing controversy. (27 Words and Phrases, Perm. ed. 536, 538.) The fact that an issue has become moot does not necessarily mean that the appellate court is without jurisdiction to determine it. The rule is one of court policy, founded upon the sound proposition that except when under some statutory duty to do so courts do not sit for the purpose of giving opinions upon abstract propositions not involving actual controversy presented for determination. “The rule as to moot issues requires further statement at this point. The fact that the only relief directly sought upon appellate review can no longer be given, owing to expiration of a period of time involved or to other change in circumstances following judgment, is by no means always sufficient to justify dismissal of the appeal. One of the well-established conditions, as to dismissal, is stated in 4 C.J.S. 1945-1948, as follows: ‘The appeal . . . will be dismissed . . . unless . . . the judgment, if unreversed, will preclude the party against whom it stands as to a fact vital to his rights.’ (Italics supplied.) Similarly, it is said in 3 Am. Jur. 310: ‘It is not every change in circumstances which might be said to render the case a moot one so as to require a dismissal of the appeal or error proceeding, however. Thus, there will be no dismissal . . . whenever the judgment, if left unreversed, will preclude the party against whom it is rendered as to a fact vital to his rights, even though the judgment, if affirmed, may not be directly enforceable by reason of a lapse of time or change of circumstances.’ ” 160 Kan. at 170-71. Appellants argue that the appeal here should not be dismissed because disqualification of an attorney continues to affect the attorney’s vital rights even though the underlying litigation is resolved. In particular, appellants argue that the attorney may have his professional reputation tarnished or his fees denied as a result of the disqualification. In Moore, this court denied the motion to dismiss for mootness because the “dismissal would unjustly affect the vital rights of the appellant in a controversy not fully determined.” 160 Kan. at 176. The vital right of the appellant was his right to receive a salary or damages. Although the Moore court could not find any authority holding a dismissal for mootness would be res judicata, the court felt it would be unfair not to proceed as if dismissal for mootness were res judicata as to Moore’s right to claim compensation. If the decision of the district court granting disqualification is found to be erroneous here, a remedy of remand for reinstatement of Ayesh and his law firm as counsel for the estate will have no effect upon any pending litigation. Since the underlying lawsuit has been settled, if this case is remanded, appellants will have no clients to represent. Ayesh and his firm have made no specific allegation that they have suffered a loss of reputation or that their fees will be diminished because they have been found to have violated MRPCT.9. A dismissal of the appeal for mootness would not be res judicata as to those two issues. Defendants also contend that appellants here are not parties to the underlying lawsuit, as evidenced by the fact that their names do not appear in the case caption. Defendants note that, at the hearing on the motion to reconsider, counsel for Ayesh and his firm argued that they were not parties to the litigation but, instead, were merely responding to a motion. Thus, defendants contend, Ayesh and the firm of Ayesh, Herd & Theis lack standing to pursue this appeal--because they are not parties to the underlying proceeding. This court has held that an attorney who is disqualified as a trustee retains no interest in an estate and cannot prosecute an appeal. Achenbach v. Baker, 151 Kan. 827, 838-39, 101 P.2d 937 (1940). Furthermore, an attorney for a school district cannot appeal a judgment without authority from the district. School District v. School District, 79 Kan. 407, 409-10, 99 Pac. 620 (1909). The United States Court of Appeals for the Seventh Circuit in Analytica, Inc. v. NPD Research, Inc., 708 F.2d 1263 (7th Cir. 1983), considered the standing of two law firms to appeal the lower court’s disqualification of the law firms from representing a client. The client hired other counsel to proceed with the litigation and did not appeal the disqualification of the firms. One of the two law firms was ordered to pay $25,000 to the objecting party because it resisted the order of disqualification. Because this order to pay was invalid if the law firm should not have been disqualified, the firm had standing to appeal the order. The other firm, however, was not ordered to pay any fees or expenses and presented no evidence that it would be rehired. Because the party had replaced this firm, it had nothing to gain by seeking reversal of the order disqualifying it and, therefore, had no grounds for appeal. The court said: “We first consider, on our own initiative as we must, whether Pressman and Hartunian has standing to appeal the order disqualifying it. Orders disqualifying counsel usually are appealed by clients upset by the prospect of losing the services of the lawyer of their choice and by the added expense of bringing substitute counsel up to speed. The client’s standing to appeal is plain enough and an order disqualifying counsel, though interlocutory, is appealable, at least in this circuit. Freeman v. Chicago Musical Instrument Co., 689 F.2d 715, 717-20 (7th Cir. 1982). If the client wants to keep the lawyer, the lawyer’s standing also seems plain, since if the disqualification order stands he will lose the fees he would have made from the case. But in this case the client has not appealed. Analytica appears content with whatever substitute counsel it has procured. We therefore cannot see what tangible object Pressman and Hartunian has in seeking reversal of the order disqualifying it. It has presented no evidence that it will be rehired and we have no reason to assume it will be, since that would require Analytica to replace the trial counsel it has hired in place of Pressman and Hartunian.” 708 F.2d at 1266. In the recent case of Ryder v. Farmland Mut. Ins. Co., 248 Kan. 352, 807 P.2d 109 (1991), Ryder, the plaintiff, brought an action to recover for personal injuries sustained in a tractor/trailer truck accident. The case was settled and dismissed with prejudice as to all of the defendants. A California law firm, Fisher, Weathers & Geeting (FW&G), claimed it was entitled to a referral fee. The Kansas firm of Wallace, Saunders, Austin, Brown & Enochs (Wallace, Saunders), which represented Ryder, contended FW&G was not entitled to a referral fee and filed a post-settlement motion to approve its contingent attorney fee. The motion was filed in the name of Ryder. Ryder had recovered his full share of the settlement and had no interest in the division of the attorney fees. The district court denied FW&G’s motion to dismiss Wallace, Saunders’ motion and denied FW&G’s claim for a referral fee. On appeal, this court considered the question of who the real parties in interest were in the controversy over the division of the attorney fees and concluded that Ryder was not one of them. We reversed the district court and remanded with directions to dismiss, stating: “In the case at bar, Ryder’s personal injury case had been dismissed as to each of the three named defendants. The Wallace, Saunders-FW&G litigation involved no petition, no answer, and no counterclaim. The case was not put on the regular discovery schedule. FW&G was not afforded full litigation procedures available under K.S.A. Chapter 60. FW&G was ‘shut out’ from asserting defenses and counterclaims. See Rullman v. Rullman, 81 Kan. 521, 524, 106 Pac. 52 (1910). “Either the FW&G motion to dismiss should have been sustained (so that the controversy could be resolved in the federal case) or the contract dispute postured in the trial court with the law firms joined and designated as plaintiff and defendant. “What now is a proper disposition? The declaratory judgment action filed by Wallace, Saunders against FW&G the day after Wallace, Saunders filed its attorney fees motion in the instant action establishes the law firms as plaintiff and defendant. The declaratory judgment action, removed to federal court, will provide each law firm with a full and fair opportunity to advance its contentions. Neither party will be ‘shut out’ from defenses and coun terclaims. In our view the declaratory judgment action provides the proper forum in which to settle the dispute. “Ryder, the plaintiff in this case, is gone from this case. The three personal injury defendants are gone from this case. A dispute exists over the alleged agreement to divide an attorney fee between the two law firms. The federal declaratory judgment action filed by Wallace, Saunders as plaintiff and FW&G as defendant is ‘standing at the' ready.’ “We express no opinion on the final resolution of the dispute. We hold that the real parties in interest are the. contesting law firms and not the absent parties who caption this lawsuit.” 248 Kan. at 368. In the present case, the plaintiff has settled his claim against the defendants. There are no parties left and no controversy remaining between the parties that has not been fully determined. We conclude that the issue of appellants’ disqualification as counsel for the estate is moot and that, in addition, appellants do not have standing to raise that issue in this appeal. In view of our decision dismissing this appeal we need not address the merits of the issues raised by appellants. The appeal is dismissed. Herd, J., not participating.	[ 48, -4, -7, 29, 8, -32, 58, -6, 94, -23, 103, 83, -37, -38, -123, 127, -41, 29, 65, 98, -44, -15, 87, -94, -42, -69, -39, -35, -80, 79, -18, 94, 76, 1, 66, 21, -26, -62, -51, 12, -98, 4, 2, -35, -35, -55, 50, -17, 24, 75, 49, -114, -13, 57, 25, -61, 105, 42, -7, -31, 120, -8, -85, -123, 127, 18, 49, 5, -104, 39, -40, 14, 30, 48, -119, -32, 80, -90, -106, -28, 43, 121, 9, 98, 99, -125, 81, -27, 12, -80, 46, -52, 31, -57, -48, 89, 40, 72, -105, -99, 112, 24, -124, 116, -26, 28, 31, 44, 13, -113, -42, -109, 31, -16, -99, 11, -18, -105, -96, 81, -114, -80, 77, -59, 126, 23, -17, -48 ]
On December 11, 1987, Michael W. Farmer was suspended from the practice of law for one year for conduct involving dishonesty, fraud, deceit, or misrepresentation. The court found that respondent had engaged in other conduct that adversely reflected on his fitness to practice law, had charged an excessive fee, and had knowingly made a false statement of law or fact. In re Farmer, 242 Kan. 296, 747 P.2d 97 (1987). The federal court imposed reciprocal discipline and suspended respondent beginning May 31, 1988. On April 18, 1989, the court found that respondent had engaged in conduct that adversely reflected on his fitness to practice law, had charged an excessive fee, had handled a legal matter without preparation adequate under the circumstances, and had knowingly used false evidence. Because of extenuating circumstances, imposition of discipline was delayed for one year on certain conditions of probation. In re Farmer, 244 Kan. 733, 772 P.2d 277 (1989). That matter is still pending before this court. In No. 66,498, the hearing panel report of the Kansas Board for Discipline of Attorneys was filed April 22, 1991. The panel found that respondent had damaged his client during the course of their professional relationship (1) by allowing his client to assume responsibility for another’s financial obligations to respondent, (2) by filing suit against his client for this debt, (3) by urging the bankruptcy court to rule on the matter to respondent’s financial advantage and to the disadvantage of his client, and (4) by respondent’s allowing his ability to exercise independent professional judgment to be impaired by his own financial interests. The panel recommended that respondent be disbarred. On May 13, 1991, respondent filed exceptions to the panel hearing report. Upon respondent’s request for an extension of time to file pleadings, filed June 27, 1991, he was granted an extension of time to file a brief. No brief has yet been filed. In No. 67,229, in its report filed October 23, 1991, the hearing panel found that respondent, while suspended in federal court, had taken actions which constituted the practice of law. The hearing panel recommended that respondent be disbarred. No exceptions have been filed. Pending is a hearing on a complaint alleging that respondent failed (1) to provide competent representation, (2) to act with reasonable diligence and promptness, (3) to keep his client reasonably and accurately informed about the status of the matter, and (4) to comply with his client’s requests for information in a post-divorce custody matter. The complaint further alleges that respondent made false statements to the court and engaged in conduct involving misrepresentation, conduct prejudicial to the administration of justice, and conduct that adversely reflects on his fitness to practice law. Also pending is a hearing on a complaint alleging that respondent did not provide competent representation in a criminal matter. On remand from the Court of Appeals, the district court found that respondent’s representation was deficient in numerous areas and that his performance prejudiced the defense. The complaint alleges that respondent engaged in conduct prejudicial to the administration of justice, accepted a case when his professional judgment was affected by his personal interest, handled a matter he was not competent to handle and without adequate preparation, and failed to seek the lawful objectives of his client. Also pending is a hearing on a complaint alleging that respondent failed to provide competent representation, failed to act with reasonable diligence and promptness, and failed to make reasonable efforts to expedite litigation consistent with the interests of his client in a probate matter. Respondent, pursuant to Supreme Court Rule 217 (1990 Kan. Ct. R. Annot. 154), has voluntarily surrendered his license to practice law in the State of Kansas effective October 29, 1991. The court, having examined the files and records of the office of the disciplinary administrator, finds that the surrender of respondent’s license should be accepted and that respondent should be disbarred. It Is Therefore Ordered that Michael W. Farmer be and he is hereby disbarred from the practice of law in the State of Kansas and his license and privilege to practice law are hereby revoked. Dated this 29th day of October, 1991. It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Michael W. Farmer from the roll of attorneys licensed to practice law in the State of Kansas and that respondent forthwith comply with Supreme Court Rule 218 (1990 Kan. Ct. R. Annot. 155). It Is Further Ordered that this order shall be published in the Kansas Reports and that the costs herein be assessed to the respondent.	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The opinion of the court was delivered by Martin, C. J. : On January 9, 1891, on a second trial in ejectment, judgment was rendered in favor of the plaintiff for lot 15 of block 15, in Butler City. A motion for a new trial was filed. January 12,1891, and a subsequent motion was filed two days later including some causes not embraced in the former. On January 17, upon hearing, a new trial was granted, and the defendants, being aggrieved by said order, were given time to make a case for the supreme court. It appears from the record that, during the pendency of the action, and on November 26, 1890, the defendants, Downey and Cox, executed a deed to A. H. Clark for tire premises in controversy, subject to a mortgage to A. B. Pomeroy for $2,000. After the order was made granting a new trial, on application of A. H. Clark and A. B. Pomeroy, it was ordered by the court that they be made parties defendant to the action, and that they be allowed to answer within 20 days, to which order of the court the plaintiff excepted. The defendants, Downey and Cox, now move to dismiss, because Clark and Pomeroy are not made parties to this proceeding in error. It was proper for the district court to allow' Clark and Pomeroy to be made parties defendant. (Code Civ. Proc. §§40, 42.) They are interested in sustaining the order of the court granting a new trial, and, having been made parties in the court below, they are necessary parties here. (Bassett v. Woodward, 13 Kan. 341; Richardson v. McKim, 20 id. 346 ; Paving Co. v. Botsford, 50 id. 331, 332, and cases cited; Norton v. Wood, 55 id. 559, 40 Pac. Rep. 911, and cases cited.) The petition in error will therefore be dismissed. All the Justices concurring.	[ -16, 106, -76, 124, 74, 96, 36, -98, 66, -95, -25, 87, -23, -126, 4, 45, 106, 77, 84, 123, -60, -78, 70, 96, 82, -109, -45, -35, -75, -19, -27, 127, 76, 32, 74, -43, 70, -64, -63, 20, -114, -121, 8, -20, -40, 8, 52, 57, 50, 1, 101, 46, -13, 42, 24, -61, 41, 44, -53, 61, -16, -71, -102, -123, 127, 22, -93, 5, -40, 7, -56, 62, -104, 53, 8, -24, 115, -122, -122, -12, 101, -85, 44, 102, 102, 32, -123, -17, -24, 8, 53, -105, -99, -89, -77, 8, 11, 105, -74, -103, 36, 20, 7, -2, -17, -123, 29, -20, 10, -101, -106, -77, -65, 58, -118, 3, -29, 3, 52, 96, -52, -12, 94, 69, 57, -69, -113, -80 ]
The opinion of the court was delivered by Martin, C. J. : On March 18, 1890, The Hancock County Importing Company, of Illinois, sold five stallions to E. E. Gilmore. In the transaction, E. E. Gilmore executed two promissory notes, which were indorsed by his brother, L. C. Gilmore. That on which the original action was brought reads as follows : “$2,246.50. Paola, Kan., March 18, 1890. “One year after date, for value received, we promise to pay to Hancock County Importing Company, or order, $2,246.50, payable at the National Bank of Paola, at Paola, with interest at the rate of 8 per cent, per annum until paid, interest when due to become principal, and draw 8 per cent, interest. If this note is not paid when due, we agree to pay all reasonable costs of collection, including attorney fees, and also consent that judgment may be entered for these amounts by any justice of the peace. E. E. Gilmore.” [Indorsed] “ Protest waived. L. C. Gilmore.” At the same time a separate instrument was executed, as follows : “It is understood and agreed between E. E. Gilmore and the Hancock County Importing Company, that in consideration of the sale of five imported stallions to E. E. Gilmore by Hancock Importing Company, that the said E. E. Gilmore agrees to and will pay and apply 90 per cent, of the proceeds received from the sale of any of said horses on the notes given for the balance of the purchase-money for said horses ; said notes are for $2,246.50 and $2,000, due in one and two years from date. “Dated this 18th day of March, A. D. 1890, at Paola, Kan. E. E. Gilmore. S. Turney.” The note for $2,246.50 was indorsed by the Hancock County Importing Company, and sold to J. A. Hirst and J. W. Sponable, on or about December 4, 1890, and, the same not being paid when due, an action was commenced thereon. The defense particularly relied upon is that there was a breach of warranty of the soundness of the horse named Lyperian; that the promissory note is non-negotiable ; and that, in any event, Hirst and Sponable had notice of ■ the failure of consideration of the note before they purchased it. It is urged against the negotiability of the note that it exacts the payment of compound interest and costs of collection, including attorney’s fees, and that it provides for entry of judgment thereon by any justice of the peace. This court held, in Seaton v. Scovill, 18 Kan. 433, 435, 436, that a note otherwise negotiable is not rendered non-negotiable by the addition of a stipulation to pay costs of collection, including reasonable attorney’s fees, if suit should be instituted thereon ; but the plaintiffs in error claim that a stipulation for attorney’s fees is now forbidden by section 1, chapter 77, Laws of 1876 (Gen. Stat. 1889, ¶ 3896), and for that reason this case is distinguishable from Seaton v. Scovill. Said section, however, only renders nugatory and unenforceable a stipulation to pay attorney’s fees, and does not vitiate the contract for the payment of money, and the courts regard such a provision as mere surplusage; and we think that the consent to the entry of judgment “by any justice of the peace ” must also be so regarded, for the limit of the jurisdiction of justices’ courts on contracts for the payment of money is $300, and jurisdiction could not be conferred by consent of parties for the entry of judgment on a note for $2,246.50. Neither do we think that the agreement to pay interest on interest at a certain rate affects the negotiability of the instrument, nor renders uncertain the amount to be paid thereon. In Parker v. Plymell, 23 Kan. 402, 403, there was a promise to pay interest at 12 per cent, after maturity, concluding with an addition that, if the note was not paid at maturity, the same should bear interest at 12 per cent, from date ; and it was held that this provision did not render the note non-negotiable; and in Lyon v. Martin, 31 Kan. 411, it was decided that the incorporation in a note of a waiver of all relief from appraisement, stay, exemption, and homestead laws does not destroy its negotiability. The case at bar is quite different from Killam v. Schoeps, 26 Kan. 310, 313, and Iron Works v. Paddock, 37 Kan. 510, where contracts respecting the title and possession of the property for which the notes were given, and other matters, were included in .what would otherwise be negotiable promissory notes. These independent contracts, having no necessary reference to payment, were properly held to destroy the negotiability of the instruments ; but these objections do not apply to the note sued on in this case. (See, also, 1 Daniel, Neg. Inst. §§ 61, 62.) There is no evidence that the plaintiffs below had any knowledge of the existence of the contract of March 18,1890, relating to the application of the proceeds of sales of the horses to the payment of the two promissory notes. Daniel says: “There may be a written stipulation on a detached paper affecting the instrument, which would be admissible as between the original parties and their representatives; but such stipulation would not affect a bona fide holder for value, who acquired it without notice.” (1 Neg. Inst. §79.) It can scarcely be said that there is any evidence that Hirst and. Sponable, before the purchase of the note, had notice of any failure of the consideration for which it was given. The evidence was substantially all to the contrary; and the judgment of the court for the full amount of the note and interest thereon was correct, and must be affirmed. All the Justices concurring.	[ 114, 102, -112, -3, 90, 96, 42, -102, 72, -63, 54, 83, 105, 66, 20, 105, -26, 45, 69, 107, 100, -14, 31, -46, -46, -13, -13, -35, -79, 77, -84, 119, 77, 52, 74, 21, -26, -118, -63, 22, -114, 37, 43, -51, 89, 72, -72, 105, 16, 72, 97, -81, -37, 46, 52, 79, 41, 44, -19, 41, -128, -7, -69, -121, 127, 30, 19, 70, -82, 7, -56, 46, -112, 49, 1, -23, 90, -76, -122, -12, 9, 25, 8, 38, 47, 1, 93, -113, 104, -100, 39, 86, -97, -89, -110, 88, 35, 101, -106, -99, 50, 16, -121, -38, -93, 13, 29, 104, 22, -102, -42, -125, -82, 62, -102, 7, -37, -81, 55, 113, -122, -16, 92, 84, 48, -101, -114, 117 ]
The opinion of the court was delivered by Johnston, J. : J. A. Lewis appeals from a conviction upon a charge of stealing six hogs, and the punishment imposed was imprisonment in the penitentiary for a term of two years. A number of errors are assigned upon rulings made at the trial, but some of them are not of sufficient importance to require notice or comment. The refusal of a continuance because of an absent witness is strongly urged as a ground of reversal The testimony which it is said the witness would give was undoubtedly material, but we are not convinced that sufficient diligence to obtain it was shown. For several months after his arrest and before the trial the defendant knew that the witness intended to remove to another state to which her husband had preceded her, but no effort was made to take her deposition. He states that she had promised to postpone going until after the trial, but she left the state some time before the trial, and the defendant knew that she went away, as well as the place to which she went, but no steps were taken by him to procure her testimony. Complaint is also made of the production before the jury of meat found by the sheriff, with the aid of a search-warrant, in the possession of the defendant. There was testimony tending to show that the hogs alleged to have been stolen were driven a short distance from the place where they were kept, when some of them were killed and loaded into a wagon, and that those in search found tracks of the wagon as well as drops of blood on the grass and the ground. The tracks were found to continue until they came to the premises of the defendant, and near his granary and stable blood and other traces of their presence were found. The tracks were followed beyond the defendant’s place for a distance of about two miles. One witness testified that on that day he was at the granary and found it locked, but in looking through a crack he discovered a pile of meat partly covered over in the granary, and that, shortly after the searching party went past the defendant’s place, the defendant and another loaded the meat into a wagon and drove away with it. About a month after the commission of the alleged offense a search-warrant was procured authorizing a search of the defendant’s premises, and at that time the sheriff found some meat which was produced and admitted in evidence. The-testimony was not strong nor very important, but in view of tire other testimony it was competent to give to the jury for what it was worth. Complaint is made of the following instruction : “Evidence has been offered for the purpose of showing that meat was seen on the morning after the loss of the hogs, as claimed, at the place of the defendant, J. A. Lewis, and that the same was soon thereafter removed therefrom, and after Joseph Mah'urin and others are claimed to have been there. This evidence you may take into consideration for the purpose of determining whether or not the pork so seen was probably a part of the hogs claimed to have been lost from the premises of the witness Mahurin, as charged.” There was no testimony to show that the meat alleged to have been seen in the granary of the defend ant was pork, and the only witness who testified that he saw the meat in the granary was unable to state from the view he had whether it was beef, pork, or mutton. By this instruction the court, against the evidence of the defendant, assumes that meat was actually seen in the granary, and the error is emphasized by the assumption that that which was seen was pork. The testimony referred to was the most important offered in behalf of the prosecution, and the unwarranted assumption by the court may have had great influence with the jury in determining that the defendant was guilty. At any rate, we are unable to say that no prejudice resulted from the error. There is also cause to complain of the ruling of the court in compelling Lewis to take the witness-stand and testify in behalf of the state. He had previously testified in his own behalf, and it is contended that the matter on which he was recalled was only a continuation of the evidence given by him when he first took the -witness-stand. The state was entitled to recall him for the purpose of a further cross-examination, but the record does not show this to have been the purpose. The statement is that he was recalled in behalf of the state in rebuttal, and examined in chief by the attorney representing the state. The examination appears to have been extended, too, beyond what would have been a legitimate cross-examination, if he had' been called for that purpose. Objections were made to other rulings, but none of them are deemed to be material. "For the errors pointed out the judgment must be reversed, and the cause remanded for a new trial. All the Justices concurring.	[ 48, -24, -3, -83, 42, 96, 42, -40, 71, -95, 54, 83, -119, -46, 5, 105, 59, -51, 84, 105, 86, -73, 39, 97, 54, -45, -111, -44, 49, 77, -81, 94, 77, 48, -118, 89, -26, -54, -63, -44, -118, 15, -72, -21, 127, 48, 56, 41, 52, 10, 49, -98, -29, 46, 30, -46, 105, 40, 75, 61, 16, -16, 58, -49, 15, 6, -110, 34, -102, 5, -38, 124, -112, 49, -125, -8, 115, -108, -124, -44, 109, -71, 12, 98, 34, 17, 93, -21, 40, -55, 44, 126, -76, -89, -104, 65, 11, 64, -106, -35, 42, -44, 39, 124, -27, 93, -35, 36, 3, -97, -108, -77, 75, 56, -102, -70, -45, 33, 48, 113, -51, -30, 72, -91, 112, -101, -114, -69 ]
The opinion of the court was delivered by Allen, J. ; This is an action brought in this court, by the attorney general, to compel , the defendant, as county clerk of Franklin county, to place on the tax rolls of that county the sum of $1,501.24, this being the share of taxes for the support of the state university apportioned to Fr’anklin county. The defendant moves to quash the alternative writ heretofore issued herein, on the ground that no valid levy was made by the legislature for this purpose. By chapter 12 of the Laws of 1895, the legislature appropriated for current expenses of the university for the year ending June 30, 1896, the sum of $100,-000, and a like sum for the succeeding year. Section 3 of the act provides as follows : ‘ ‘ The sums appropriated under section 2 of this act shall be paid out of the fund created by the act entitled ‘An act to provide for the government and maintenance of the university of Kansas,’ which took effect February 27, 1889, ‘ as amended by the Laws of 1895, and if the funds created by.this act are not sufficient, then the balance to meet this appropriation shall be paid out of any money in the treasury not otherwise appropriated.’ ” The act of 1889 referred to, and which appears in the General Statutes of that year as paragraph 6383, provides for a levy sufficient to create a fund of $75,-000 per year for the year ending June 30, 1891, and each succeeding year thereafter. By section 2 of chapter 226 of the Laws of 1895, this section is amended so as to increase the fund to be raised to $100,000 per annum. Objections are raised against the validity, both of the act of 1889 and the amendments of 1895, on the grounds that the legislature has no power to provide for raising revenue for more than two years, and that the only manner in which the legislature can levy a tax is by fixing a rate per cent, on the taxable property. It is claimed that, the original section being void, it could not be amended, and that chapter 226 of the Laws of 1895 is wholly inoperative on this ground, and also on the further ground that the title to the act fails to express its subject. Section 3 of article 11 of the constitution provides : ‘ ‘ The legislature shall provide at each regular session for raising sufficient revenue to defray the current expenses of the state for two years.” This section imposes on the legislature at each biennial session a duty to levy taxes for the ensuing two years. That duty must be fully performed by the legislature at each regular session, and one body of legislators cannot, by making a continuing levy, encroach on the province of a succeeding one. The act of 1889 was valid as a levy for two years only. There is no force in the contention that the legislature can only levy taxes by fixing a rate per cent, on the valuation of the property. The constitution nowhere restricts the legislature to any particular form of raising revenue. The title of chapter 226 of the Laws of 1895 is as follows : “An act amending sections 6380 and 6383 of the General Statutes of 1889, and repealing said original sections.” The contention that this act is invalid because the act of 1889 had spent its force, and is therefore not a law capable of amendment, is not sound. It was a valid law for raising revenue for two years. It had a continuing force until amended for various purposes, among others, the collection of the amount levied wherever the same remained delinquent, and as a basis for all the necessary tax proceedings provided for its collection. It was never a mere nullity, and the legislature had ample power to amend it. The title to chapter 226 of the Laws of 1895 refers specifically to the sections amended and is unexceptionable in form. By paragraph 6928 of the General Statutes of 1889, it is made the duty of the state board of equalization to apportion the amount of taxes for state purposes among the several counties in proportion to the value of the taxable property therein, and paragraph 6930 makes it the duty of the county clerk in each county to determine the rate per cent, necessary to raise the taxes required for state purposes as determined by the state board of equalization, and place the same upon the tax rolls of the comity. , It is the clear duty of the county clerk in each county to charge up against the. taxable property the taxes required to be raised for the support of the university by the statutes under consideration. The motion to quash, the writ is overruled, and judgment entered for the plaintiff. All the Justices concurring.	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The opinion of the court was delivered by Martin, C. J. : I. We are of opinion that E. H. Ebert was not competent as a juror. He had heard the county attorney and several other persons discuss the supposed facts, and had related them himself. He entertained very erroneous and deep-seated views respecting his duties as juror in the case, and these were probably strengthened by the overruling of the defendant’s challenge for cause. The constitution guarantees to every person charged with crime a trial by an “impartial jury,” and, as the defendant exhausted all his peremptory challenges, the error of the court in overruling the challenge of Mr. Ebert for cause must be held material, although he was afterward excused on the peremptory challenge of the de fendant. (The State v. Brown, 15 Kan. 400 ; The State v. Miller, 29 id. 43, 47 ; The State v. Beatty, 45 id. 492, 499.) II. As it is enacted by section 201 of the code of criminal procedure that ‘ ‘ no person who believes the punishment fixed by the law to be too severe for the offense . . . shall be sworn as a juror,” perhaps Mr. Monroe ought to have -been excused, notwithstanding the challenge for cause was interposed by the defendant. The statute was, doubtless, intended for the protection of the state as represented in the prosecution, and to relieve men called as jurors from the onerous and distasteful duty of participating in a trial which may result in a punishment of the accused which, in the opinion of the juror, is excessive, and out of proportion to the offense. But it is difficult to see how a defendant could be prejudicially affected by the retention of such a man on the jury, or why a judgment of conviction should be reversed on that account. The instructions of the court were sufficiently favorable to the defendant, and there was no error in refusing the three asked by him, the points therein, so far as correct, being fully covered by the instructions given. It was not a proper case for an instruction as to an attempt to commit the offense, for, under the evidence, the defendant was guilty of the completed crime, or not guilty at all. The case is quite distinguishable in this respect from The State v. Grubb, 55 Kan. 678. III. The record in this case is justly subject to all the adverse criticism devoted to that in The State v. Lewallen, 55 Kan. 690, and more. In addition to the faults of that document, this embraces 86 typewritten pages of the examination of all the jurors on their •voir dire, although exceptions were taken to two only, and their whole examination occupies but 10 pages. These, with a statement that the defendant exhausted all his six peremptory challenges, ought to have been set forth in a bill of exceptions, and made part of the record. Because of the improper overruling of the defendant’s challenge of Mr. Ebert for cause, the judgment is reversed, and the case remanded for a new trial. All the Justices concurring.	[ -16, -24, -3, -98, 10, 64, 42, -40, 0, -80, -90, 115, 41, -37, 4, 121, -69, -67, 84, 43, -52, -74, 23, 67, -78, -45, -47, -43, 55, 75, -10, -3, 13, -80, -54, -43, -26, -54, -123, 86, -122, 14, 104, -36, -38, 32, 48, 126, 86, 11, -15, 62, -29, 42, 30, -53, -119, 40, 91, 63, 64, -80, 62, -113, -61, 20, -77, 2, -102, 3, -38, 36, -104, 53, 3, -24, 115, -106, -126, -44, 109, -119, 12, 102, 99, 17, 61, -18, -24, -103, 46, 111, -99, -89, 28, 9, 73, 68, -74, -37, 102, 52, -82, 122, -28, 21, 21, 124, 3, -97, -106, -79, -17, 124, -102, -64, -53, -95, -80, 113, -50, -16, 92, 69, 89, -69, -58, -108 ]
The opinion of the court was delivered by Martin, C. J. : An action to recover damages for personal injuries suffered by a servant of a railroad company from the negligence of a fellow servant must be brought within two years. (A. T. & S. F. Rld. Co. v. King, 31 Kan. 708.) Schroeder was injured February 17, 1886, and he commenced his action February 24, 1887, but his right of action was founded directly upon the duty of the master toward him; and this was not changed, but on March 7, 1888, a -further cause of action was added, and this was based, not upon the negligence of the master, but upon that of a fellow servant, thus setting up a right of action not existing at the common law, but founded upon the statute of 1874. If the second amended petition should relate back in. all its.parts to the original petition, then the two-years statute of limitations does not apply ; but if we are to treat the second cause of action as instituted at the time the necessary allegations were made and filed, then the right of action was barrel by that statute. Ás a general rule, amendments and amended pleadings relate back to the filing of the originals or to the commencement of the action. But it has been several times decided by this' court that this rule does not obtain where the defendant has a separate and distinct cause of action against the plaintiff, which is set up by way of cross-petition. (Neddo v. Neddo, ante, p. 507, 44 Pac. Rep. 2, and cases cited.) And we-think the reasoning in those cases must lead to the conclusion that a plaintiff cannot deprive a defendant of the benefit of the statute of limitations by ingrafting upon a case commenced in time another cause of action barred by the statute. In Hiatt v. Auld, 11 Kan. 176, 182, 183, it was held that a cause of action is not saved by section 23 of the code unless the second action is substantially the same as the first; that the form may be different and the regulations may vary, “but the right to recover must grow out of the same transaction, and depend upon similar grounds of liability on the part of the defendant.” It is true that Schroeder had but one grievance, and this was the personal injury sustained by him oh February 17, 1886, in the unloading of rails. For more than a year he prosecuted his action averring the fault of the master alone. Afterward, he alleged another cause of action for the same grievance, not “upon similar grounds of liability on the part of the defendant,” but upon the alleged fault of a fellow servant. In the first cause of action he'relied upon the common-law liability of the master ; in the second, upon the.' liability cast upon the master by the statute of 1874 on account of the fault of a servant. Now, although it was permissible to allow a second cause of action to be added by'amendment, this should not deprive the defendant below of the benefit of the statute of limitations as to such added cause of action. The case of K. P. Rly. Co. v. Salmon, 11 Kan. 83, same case, 14 id. 520, is cited as inconsistent with the conclusion here reached. In that case, the first trial was upon the theory that Salmon was a passenger ; but the judgment in favor of his administratrix was reversed -by this court. After the case had been remanded for a new trial, the court allowed an amendment to the effect that Salmon was an employee of the railway company, and it was held here that this was not error. No question of the statute of limitations was raised, and both the original and the amended petition stated a cause of action at common law, each being based upon the negligence of the railway company itself, and the amendment being favorable to the company, because ordinary care only was required on its part toward an employee, while extraordinary care was due to a passenger. This question has been recently decided by the supreme court of the United States in U. P. Rly. Co. v. Wyler, 158 U. S. 285. Wyler, an employee of the railway company, was injured in its yards at Wyandotte in April, 1883. He commenced his action in the circuit court of Jackson county, Missouri, Séptember 25, 1885, alleging that he was injured through the incompetency of Kline, a coemployee, and charging that such incompetency was well known ’ to the railway company but unknown to the plaintiff. The petition therefore stated a cause of action at common law for the fault of the master. The case was removed to the United States circuit court and remained pending until October 30, 1888, when the plaintiff filed an amended petition, in which he reiterated his original averments and added thereto the charge that his injury resulted from the negligence and mismanagement of Kline. On November 2, 1888, he filed a second amended petition, which eliminated the charge of the incompetency of Kline a,iid the knowledge of such incompetency on the par/ of the railway company, and further stated that he had ‘‘ a cause of action against; the defendant under and by virtue of the law of Kansas in such cases made and provided, in section 1, chapter 93, Laws of Kansas of 1874.” The court decided that the statute of limitations, as applied to such new cause of action, treats the action as commenced when the amendment was incorporated into the pleadings, and not as begun when the action itself was commenced. The Missouri statute of limitations in such cases is five years, but more than that time had elapsed from the date of the injury in April, 1883, until October 30,1888, when the cause of action under the statute was first set up. The court held the action to be barred, Justice White delivering the unanimous opinion of the court, which is very exhaustive, and to which we refer as containing a full citation and review of the authorities upon the subject both old and new. As it appears from the record that when Schroeder set up his second cause of action it was barred by the statute of limitations, the judgment of the court below must be reversed, and judgment entered in favor of the defendant below. All the Justices concurring.	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The opinion of the court was delivered by Johnston, J. : In 1887 Jesse C. Crall owned about 17i acres of land near the city of Atchison, which he sold to Samuel C. King for $17,000. The purchase was made by King for a syndicate of 15 persons, but the deed from Crall was taken and held in King's name until the persons composing the syndicate had organized themselves into a corporation. Crall took two shares in the purchase of $1,000 each, leaving $15,000 due to him upon the land, one-lxalf of which was paid when the deed from Crall was executed, and for the balance King executed a note or paper promising to pay $7,500 one year after date out of the proceeds of the sale of the land only, without any personal liability on his part, with interest thereon from date at the rate of 8 per cent, per annum. At the same time he executed a mortgage upon the land to secure the payment of the debt according to the terms of the note or paper above mentioned. Soon afterward the persons composing the syndicate for whom the land was purchased and held by King organized a corporation called “ The Hyde Park Investment Company,'' and the land was then conveyed to the corporation by King. Shortly afterward Crall borrowed about $4,000 from the First National Bank of Atchison, and to secure the payment of the same transferred to the bank the note and mortgage executed by King. Neither of the debts mentioned was paid when it became due, and the bank brought an action on the note executed by King and assigned to it by Crall, asking a personal judgment against both King and Crall. The Hyde Park Investment Company was made a party because it claimed an interest in the mortgaged property, and the bank also asked a foreclosure of the mortgage. Crall answered, admitting the indorsement and transfer of the note and mortgage, and alleging that they had been transferred only as collateral security 'for a personal loan from the bank of $4,080, and that, when the King note and mortgage were collected, his debt to the bank should be first paid out of the proceeds, and the balance of the proceeds remaining after paying that debt should be paid to him. King answered that in the sale of the land he only acted in the capacity of agent or trustee, and that he did not become personally liable for the payment of the debt in suit. The Hyde Park Investment Company answered that it had become vested with all the title and interest which King ever had in the land, and denied all the other averments of the petition. At the end of the trial, and after the court had found that King and Crall were not liable to the bank for the debt, and that The Hyde Park Investment Company was liable for the amount of the same, the bank, with the permission of the court, filed an amended petition, with a view of making its pleading conform to the proofs, alleging that an agreement respecting the sale of the land had been made prior to the execution of the written papers, and that it was the binding one, and also that the investment company had assumed the obligation for the balance of the purchase-price of the land. Judgment was given to the bank against the investment company for the full amount of the debt, and a foreclosure of the mortgage was decreed, while King and Crall were allowed to go thence without day, and to recover their costs. The Hyde Park Investment Company brought the case to this court, making only the First National Bank of Atchison a defendant in error. The bank filed a cross-petition in error against Samuel C. King, seeking for a modification of the judgment, in which it asks that a personal judgment be ordered against Samuel C. King as well as against the investment company. Crall was not served with summons in error, nor otherwise made a party in the proceedings in error in this court, and it appears that he died about three years after the proceeding was. begun. A motion is now made to dismiss the proceeding because of the absence of Crall. We think his presence was necessary to a review and the final determination of the .controversy. In his answer he claimed that the note upon which the bank brought its action had been transferred to it merely as collateral security, and he contended that he was entitled to the balance that remained after his debt to the bank was discharged. It is true that this relief was not granted to him, and that he took no exceptions nor did he file any cross-petition in error ; mid it is argued that Crall or his representatives could not be affected in any way by a decision of this court. Crall may have been satisfied with the judgment as it was given, but might not have been if no personal judgment had been awarded against the investment company: King has been relieved from personal liability, and if, upon a review, the investment company should be held not to be liable, then the bank must look alone to the mortgaged land and to the estate of Crall for the payment of its debt. If the proceeds of the sale of the land proved to be insufficient to pay the debt of the bank, the burden of the balance must fall upon the Crall estate. It may have been that, at the time the judgment was rendered, the land was worth only a fraction of the debt due to the bank, and yet Orall may have regarded the judgment against the investment company to have been ample security for any contingent liability against him, and for that reason took no steps to secure a reversal. If King and the investment company were both finally relieved from personal liability, and the land is not worth more than one-lialf of the Orall debt, it is not difficult to see that the Orall estate may be interested in the review. The rule is, that the absence of a paiiy to a judgment udio uiay be prejudicially affected by a modification or reversal is sufficient to defeat the jurisdiction of this court, and there can be no review of any part of the judgment. (Land Co. v. Lumber Co., 53 Kan. 677, and cases cited.) It is contended that Orall’s heirs and the representatives of his estate have by their own action become parties to th e proceeding, and for that reason the motion should not be allowed. In February, 1895, about five years after the rendition of judgment and nearly one year after the death of Orall, the heirs and representatives presented a motion to revive the judgment rendered by the district court in favor of Jesse 0. Orall in their names, and there being no opposition the motion was allowed. No application was made, however, to revive the proceeding in error, and the heirs and representatives did not seek to be made parties for any other purpose than for a revivor of the judgment. This court liad ample authority to revive the proceeding in error in the name of the heirs and personal representatives, but the application to revive the judgment should have been presented to the district court. No relief was asked for or against Crall in the petition in error or in the cross-petition in error ; and, as he was in no sense a party at the time the application to revive the judgment was made, that application did not operate to make them parties to this proceeding nor to give the court jurisdiction to revive the cause. The proceedings in error will be dismissed. All the Justices concurring.	[ -16, 106, -72, 46, 90, 96, 10, -102, 105, -88, -91, 83, 75, -54, 4, 109, -62, 93, -16, 104, 103, -77, 7, 57, -46, -77, 121, -51, -75, 92, -26, 87, 76, 16, -54, -43, -90, -62, 66, 92, -114, -91, 41, 68, -7, 0, 52, 127, 4, 74, 17, -98, -13, 42, 29, -30, 77, 44, -53, 44, 80, -16, -117, -124, 127, 17, 0, 102, -100, 7, -40, 62, -112, 49, 12, -56, 91, 54, -106, -12, 13, -101, 108, -90, 98, 0, 97, -17, -40, -104, 15, -2, -115, -122, -122, 88, 98, 97, -73, -97, -3, 4, 7, -12, -18, 5, 24, 108, 3, -117, -108, -125, -123, 124, -104, 11, -17, 7, -95, 96, -51, -94, 76, 71, 62, -109, -98, -8 ]
The opinion of the court was delivered by Joi-inston, J. : This action was brought by J. H. Boice, Wm. F. Sapp and J. Shoman to quiet the title to three lots in Galena which was clouded by a claim of title made by Alice H. Aldrich and her husband, Joseph E.' Aldrich. H. B. Aldrich and Laura L. Aid-rich were husband and wife, and had two children named Joseph and Mary. They resided in the state of New York, but owned property in the West, and the title to the lots in question was in the wife, Laura L. Aldrich, at the time of her death, on December 10, 1886. On March 8, 1888, H. B. Aldrich and Hattie J. Aldrich were married, and subsequently there was born to them a daughter. Shortly before her death, Laura L. Aldrich executed a will, in which she bequeathed her property, including that in controversy, to her husband, H. B. Aldrich, and it is alleged that it was transferred to him under an agreement that the property was to be held by him in trust for the two children, Joseph and Mary, and was to be divided between them when they could agree on a division of the property. Joseph intermarried with Alice H., and Mary was married to E. E. Sapp, all of whom, together with the second wife, Hattie J. Aldrich, and her infant daughter, were made parties defendant. In the latter part of 1889 Joseph and Mary agreed upon a division of the property held in trust for them by their father, and this was done at his earnest solicitation. Afterward he executed deeds conveying to Mary the property allotted to her,, but it appears that J oseph was involved in financial troubles and the conveyance to him was delayed. On January 18, 1890, H. B. Aldrich suddenly died intestate. Soon afterward the heirs, who all conceded that the property allotted to Joseph belonged to him, joined in what was understood to be a conveyance of the property to him, but no grantee was named in the instrument. It was, however, delivered to Joseph, and subsequently the name of his wife was written in the deed as grantee. It appears that in 1886 a judgment was recovered against Joseph in the district court of Cherokee county for $1,883.70. Under an execution issued January 20, 1890, the property in question was levied upon as the property of Joseph, and on March 3, 1890, was sold by the sheriff to J. H. Boice, who afterward conveyed an undivided one-third to each of his codefendants in error. Immediately after the sale and- conveyance Boice took possession of the lots, but within few weeks afterward Joseph.and his ,wife; who had been in Massachusetts, came to Kansas, and in some way gained an entrance to one of the houses on the lots in controversy, and continued to occupy the same until the. trial occurred. In addition to the claim that the title to the property was in Alice. H., the wife of Joseph, they claim that it-was their homestead, and was therefore exempt from sale on .execution, but the court decided all the issues against them. They first contend that, as the petition showed that they were in' the occupancy of one of the lots, the statutory action to quiet title could not be maintained, and that the demurrer filed by them should have been sustained. The allegations of the petition are probably full enough to entitle the plaintiffs below to the equitable relief which they sought, independent of the statutory action. If, however, we treat it as a statutory action to quiet title, the overruling of the demurrer must be held to have been correct. Under any interpretation of the averments of the petition, it appears that the plaintiffs were in the actual possession of two of the lots at the commencement of the action, and, as to them, it undoubtedly .stated a good cause of action. The demurrer being general to the entire, petition, it was in any event properly overruled. It is next contended that’ the evidence fails to sustain the finding and judgment of the court, and that under the facts in the case the title, to the property was in Alice H. Aldrich, and not in her husband, and was therefore not subject to levy and sale for the payment of his debts. This claim is hardly available in the state in which we find the record. It does not show in any legal way that it contains all the testimony that was heard by the trial court. If we should treat the evidence in the record to be complete we think it is amply, sufficient to sustain the findings of the court. It is conceded that H. B. Aldrich held the property in trust for the two children, Joseph and Mary. The trust was fully recognized and often stated by H. B. Aldrich, and to carry out the wishes of his former wife he gave the property to the children. He required them, as between themselves, to make a division of the property, which was accomplished in the November preceding his death. After the division was made, Joseph took possession of the property in question as his own, collected rent, and otherwise exercised acts of ownership over it, prior to the death of his father. The testimony shows that the equitable interest and title to the property was in Joseph, and that this was conceded by all who had any interest in the estate of H. B. Aldrich is shown by the ineffectual attempt to convey the legal title to biin after the death of his father. Land held by an equitable title is subject to levy and sale, as well as that held by a legal title. There is little foundation for the claim of homestead made by them ; and, in the absence of a showing that all the testimony is in the record, we cannot in any event disturb the finding of the court upon that question. They had never resided on this property prior to the levy and sale of the same. Where a judgment lien has attached, no subsequent occupation of the land as a homestead by the debtor affects the extent or validity of such prior lien. (Bullene v. Hiatt, 12 Kan. 98 ; Machine co. v. Miner, 28 id. 444.) The judgment of the district court will be affirmed. All the Justices concurring.	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The opinion of the court was delivered by Johnston, J.: A. C. Wait was prosecuted in the police court of the city of Salina for the violation of an ordinance regulating the use of hacks and other vehicles drawn by animals. He was convicted in that court, and from the judgment he appealed to the district court. In that court he challenged the validity of the ordinance, and upon his motioh the district court quashed the complaint, and discharged him from custody. The city has attempted to take an appeal to this court. Does an appeal lie, and has this court jurisdiction to review the ruling of the district court? A negative answer must be given to both of these questions. The defendant is entitled to take an appeal to the district court from the judgment of the police court (Gen. Stat. 1889,¶854) ; but we find no provision authorizing the city to appeal from the judgment of the police court. In prosecutions by the city for an act of a criminal nature, and which is an offense against the laws of the state, the defendant may appeal to the supreme court from any judgment rendered against him in the district court. (Crim. Code, § 281.) We have no statutory provision, however, expressly giving the right of appeal to a city in any prosecution brought in its name. Appeals to the supreme court can only be taken by the state in three cases : “First. Upon a judgment for the defendant, on quashing or setting aside an indictment or information. Second. Upon an order of the court arresting judgment. Third. Upon a question reserved by the state.” (Crim. Code, §283.) Without this provision no appeal could be taken by the state, and we find no such provision authorizing an appeal by the city. It has been assumed that the city might appeal ■ in cases where the act sought to be punished was an offense against the public at large, criminal in its nature, and such as might be or is punishable under the criminal laws of the state. Whether such right exists in the city without express legislation to that effect it is unnecessary to determine at this time. The prosecution in this instance is for the violation of a mere municipal regulation. There is no provision which expressly or impliedly gives • the city a right to an appeal in such cases, and without a statutory authority no right of appeal exists. This court is without jurisdiction to review the ruling of the district court, and therefore the appeal will be dismissed. All the Justices concurring.	[ -16, -14, -7, -82, 58, 64, 18, -104, 81, -77, -25, 115, 45, -54, 23, 123, -101, 125, 84, 105, 69, -74, 7, 97, -70, -13, -37, -43, -77, -36, -28, 94, 13, 48, -118, -107, 102, -54, 71, -44, -114, 39, -55, 93, 83, 72, 36, 123, 50, 11, -15, 31, -13, 110, 24, -62, -23, 40, -37, -67, 80, -15, 46, -115, -19, 2, -93, 36, -100, -121, 120, 46, -112, 57, 2, -8, 113, -90, -122, -11, 111, -101, -116, 38, 98, 1, 109, -22, -72, -55, 14, 126, -121, -90, -108, 17, 106, 1, -106, -103, 100, 54, 39, -4, -25, -123, 91, 108, -113, -50, -80, -111, -49, 52, 34, -48, -57, -127, 48, 113, -51, -78, 92, -10, 91, 91, -50, -72 ]
The opinion of the court was delivered by Allen, J. : I. The main contention of counselfor the plaintiff in error is that this was an interstate shipment of cattle; that the company’s connection with, the whole matter was that only of a common carrier ; that it complied with all the regulations prescribed by the department of agriculture under th!e act of congress ; that the federal statute and the regulations established by the secretary of agriculture under it is' the supreme law, and in effect repeals all provisions of the laws of Kansas in any manner conflicting therewith ; that the company was bound, as a carrier, to receive and .transport the cattle because they were loaded at a point without the quarantine line established by the secretary, and the shippers were furnished with a permit issued in accordance with the regulations governing such shipments ; that it delivered them to the owners at their destination; that no injury resulted to any one from the cattle while in the railroad company’s charge ; and that no culpable conduct on its part is shown to have contributed to the plaintiff’s loss. The conclusions we have reached render it unnecessary to consider how far congress,' by acts passed for the regulation of interstate commerce, could go in curtailing the power of the legislature of this state to protect its citizens from the introduction of infectious or contagious diseases dangerous to their health or destructive of their property. The first question to consider is whether there is really any conflict between the act of congress and the state statute on which the plaintiff’s cause of action is based. Section 3 of chapter 201 of the Laws of 1891 reads as follows: “Any person or persons who shall drive, ship, or transport, or cause to be shipped, driven, or transported, into or through any county in this state, any cattle liable or capable of communicating Texas, splenic, or Spanish fever to any domestic cattle of this state, shall be liable to any person or persons injured thereby for all damages that they may sustain by reason of the communication of said disease, or Texas, splenic, or Spanish fever, to be recovered in a civil action in any court of competent jurisdiction, and the parties so injured shall have a first and prior lien to all other liens for such damages on the cattle communicating the disease of Texas, splenic, or Spanish fever.” By the fourth section of the same chapter it is provided that proof that the cattle were brought into this state from the south of the thirty-seventh parallel of north latitude shall be taken as prima facie evidence that such cattle were, between the 1st day of February and the 1st day of December of the year in which the offense was committed, capable of communicating Texas, splenic, or Spanish fever, and that the owner or person in charge of such cattle had full knowledge thereof. It is further provided in the last-mentioned section that if it is shown that the cattle have been kept since the 1st day of December of the previous year west of the twenty-second meridian of longitude from Washington and north of the thirty-fourth parallel of north latitude, the provisions of the section shall not apply. Section 3, above quoted, contains, in substance, the provisions of section 7, chapter 161, of the Laws of 1881, which by its terms includes only persons driving or causing to be driven such cattle into or through a county in this state, while section 3 includes persons shipping or transporting, as well as driving, such cattle. In March, 1884, an act was passed by the legislature of the state entitled “An act for the protection of domestic animals,” which provided for the appointment of a live-stock sanitary commission, and was designed to prevent the spread of contagious disease among domestic animals within the state. On May 29 of the same year the act of congress entitled “An act for the establishment of a bureau of animal industry to prevent the exportation of diseased cattle, and to provide means for 1jhe suppression and extirpation of pleuropneumonia and other contagious diseases among domestic animals,” took effect, and appears as chapter 60, volume 23, U. S. Statutes at Large. The only sections of the act we deem it necessary to quote are as follows : “ Sec. 3. That it shall be the duty of the commissioner of agriculture to prepare such rules and regulations as he may deem necessary for the speedy and effectual suppression and extirpation of said diseases, and to certify such rules and regulations to the executive authority of each state and territory, and invite said authorities to co-operate in the execution and enforcement of this act. Whenever the plans and methods of the commissioner of agriculture shall be accepted by any state or territory in which pleuropneumonia or other contagious, infectious or communicable disease is declared to exist, or such state or territory shall have adopted plans and methods for the suppression and extirpation of said diseases, and such plans and methods shall be accepted by the commissioner of agriculture, and whenever the governor of a state, or other properly constituted authorities, signify their readiness to co-operate for the extinction of any contagious, infectious or communicable disease in conformity with the provisions of this act, the commissioner of agriculture is hereby authorized to expend so much of the money appropriated by this act as may be necessary in such investigations, and in such disinfection and quarantine measures as may be necessary to prevent the spread of the disease from one state or territory into another.” “Sec. 6. That no railroad company within the United States, or the owners or masters of any steam or sailing or other vessel or boat, shall receive for transportation or transport, from one state or territory to another, or from any state into the District of Columbia, or from the district into any state, any live stock affected with any contagious, infectious or communicable disease, and especially the disease known as pleuropneumonia ; nor shall any person, company or corporation deliver for such transportation to any railroad company, or master or owner of any boat or vessel, any live stock, knowing them to be affected with any contagious, infectious or communicable disease ; nor shall any person, company or corporation drive on foot or transport in private conveyance from one state or territory to another, or from any state into the District of Columbia, or from the district into any state, any live stock, knowing them to be affected with any contagious, infectious or communicable disease, and especially the disease known as pleuropneumonia: Provided, That the so-called splenetic or Texas fever shall not be considered a contagious, infectious or communicable disease within the meaning of sections 4, 5, 6 and 7 of this act as to cattle being transported by rail to market for slaughter, when the same are unloaded only to be fed and watered in lots on the way thereto.” 11 Seo. 7. That it shall be the duty of the commissioner of agriculture to notify, in writing, the proper officials or agents of any railroad, steamboat or other transportation company doing business in or through any infected locality, and by publication in such newspapers as he may select, of the existence of said contagion ; and any person or persons operating any such railroad, or master or owner of any boat or vessel, or owner or custodian of or person having control over such cattle or other live stock within such in fected district, who shall knowingly violate the provisions of section 6 of this act, shall be guilty of a misdemeanor, and, upon conviction, shall be punished by a fine of not less than $100 nor more than $5,000, or by imprisonment for not more than one year, or by both such fine and imprisonment.” It is clearly appears from section 3, above quoted, that congress did not cast on the secretary of agriculture and those acting under him the entire responsibility of preventing the spread of contagious diseases among domestic animals. It expressly recognized the right of the states to pass laws and prescribe rules and regulations for that purpose, and authorized the expenditure of the money appropriated by congress for the purposes stated in the act whenever the governor of a state or other properly constituted authorities signified their readiness to co-operate with the department of agriculture. Not only is there an absence of permission to transport domestic animals capable of communicating an infectious or contagious disease from one place to another under any authority whatever, with a single exception hereafter mentioned, but the first clause of section 6 expressly prohibits any railroad company from transporting from one state or territory to another any live stock affected with any communicable disease. The last clause of this section expressly recognizes the existence of such a disease as splenetic or Texas fever, but exempts cattle affected with it from the provisions of the act when being transported by rail to market for slaughter, when the same are unloaded only for the purpose of feeding and watering on the way. The grant of permission to transport to market for slaughter emphasizes the prohibition contained in the preceding portion of the section against the transportation for other purposes of cattle capable of communicating the disease. It clearly was not the purpose of congress to authorize cattle capable of imparting Texas fever to be brought into Kansas and communicate the disease to the domestic herds of this state. On the other hand, this section explicitly prohibits the company from doing so. Section 7 makes it the duty of the commissioner of agriculture to give notice to railroad companies doing business through any infected locality of the existence of the contagion, and imposes penalties for the violation of the act. This requirement of notice does not abrogate any of the other provisions of the act. Nor does it in any manner affect the validity of the laws of this state on the subject. It seems entirely clear to us that, in the passage of this act, congress exercised its power to regulate commerce between the states in aid of the states in their efforts to prevent the spread of diseases among domestic animals, and to assure purchasers of animals exported from this country for slaughter of their healthful condition. There is nothing whatever in the act prohibiting the states from enacting and enforcing regulations to extirpate and prevent the spread of contagious diseases, but, on the contrary, the states are in effect asked to be more active and vigilant in their efforts in that direction. The validity of the statutes of this state passed for the protection of domestic'cattle against Texas or splenic fever has been considered by this court and upheld. (Pattee v. Adams, 37 Kan. 133; Mo. Pac. Rly. Co. v. Finley, 38 id. 550.) The case of Railway Co. v. Hefley, 158 U. S. 98, so much relied on by counsel for plaintiff in error, does not seem to us to have any bearing. It relates to a statute of Texas on the subject of freight rates, and is entirely foreign to the question now under considera tion. The case of Railroad Co. v. Husen, 95 U. S. 465, also cited, has more bearing. It holds a law of Missouri absolutely prohibiting the bringing into the state of Texas, of Mexican or Indian cattle between the 1st day of March and the 1st day of November in each year, unless kept in the state the entire previous winter, to be an unwarranted restriction on interstate commerce, because it does not purport to be a police regulation merely to prevent the introduction o,f contagious or infectious diseases, but prevents t,he importation of such cattle, however healthy. It was said in the opinion in that case, in speaking of the power of the state : "It may exclude from its limits convicts, paupers, idiots and lunatics, and persons likely to become a public charge, as well as persons afflicted by contagious or infectious diseases, a right founded, as intimated in the Passenger Cases, 7 How. 283, by Mr. Justice Grier, in the sacred law of self-defense. (Vide Neff v. Pennoyer, 3 Sawyer, 283.) The same principle, it may also be conceded, would justify the exclusion of property dangerous to the property of citizens of the state ; for example, animals having contagious or infectious diseases.” The case of Kimmish v. Ball, 129 U. S. 217, is very closely in point. It is there held that "Section 4059 of the code of Iowa, which provides that a person having in his possession Texas cattle shall be liable for any damages which may accrue from allowing them to run at large, and thereby spread the disease known as the Texas fever, is not in conflict with the commerce cla,use of the constitution of the United States, nor is it a denial to citizens of other states of any rights and privileges which are accorded to citizens of Iowa, and thus in conflict with subdivision 1 of section 2 of article 4 of the constitution, relating to the privileges and immunities of the citizens of the several states.” Although that case arose after the passage of the act of congress we are now considering, it does not seem to have been contended that there was any conflict between the act of congress and the Iowa statute. In the opinion it was said : “The case is therefore reduced to this, whether the state may not provide that whoever permits diseased 'cattle in his possession to run at large within its limits shall be liable for any damages caused by the spread of the disease occasioned thereby, and upon that we do not entertain the slightest doubt. Our answer, therefore, to the first question upon which the judges below differed is in the negative, that the section in question is not unconstitutional by reason of any conflict with the commercial clause of the constitution.” II. It is insisted that, even though the statute be held valid, the facts in this case do not warrant a recovery against the railroad company, because the introduction of the cattle into the state was rather the act of Hosier Bros, than of th.e company; that it received the cattle from a connecting carrier, with waybills showing that the cattle -were loaded outside of the infected district, and furnished with inspectors’ certificates of their healthful condition; that it delivered them' to the owners at the destination named, and had no connection whatever with the drive to the Brogan pasture in Chase county. The responsibility of a carrier bringing into this state the germs of contagion which destroy the property of great numbers of the citizens of the state is not so easily evaded, or shifted to the shoulders of owners or other persons taking part in the shipment. Complaint is made of the ruling of the court excluding certain permits, as well as the circular issued by the secretary of agriculture, containing a notice that a disease known as splenic or Southern fever ex ists among cattle within the area therein described, and prohibiting the transportation of cattle from said area to any other portion of the United States, except for certain purposes, and under certain regulations therein prescribed, not applicable to this case, and also of the instructions of the court in reference thereto. The permits referred to were issued by Albert Dean, inspector at Kansas City, Kan., and purport to" be by order of the live-stock sanitary commission. One of them authorized the shipment by the defendant to Hartford, Kan., of 1,501 head of cattle consigned to Hosier Bros. The only description of the cattle contained in it is : “ Said cattle are shown by affidavit in this office to have been from Pecos county, Texas. These cattle are branded t3, and other brands.” The other is in substantially the same language, authorizing the shipment of 500 head. It is not necessary to determine what protection a certificate issued by an inspector who had actually inspected the cattle, describing them so that they could be identified, might afford the railroad company or owner of the cattle, in a criminal prosecution or any other action where the matter of good faith on the part of the person acting under the certificate might be in issue. It is not claimed that the inspector had ever seen the cattle, or had any personal knowledge whatever in regard to them. The permits show that they were based on affidavit, and the description of the cattle given in them is altogether insufficient to identify them. The circular issued by the secretary of agriculture, -which was excluded, contains nothing tending to relieve the company from liability. So far as showing the boundaries of the infected district, the map issued by the secretary, which was admitted in evidence, answered the same purpose as the circular. The board of live-stock sanitary commissioners doubtless has power to establish and enforce quarantine regulations -within this state. But such regulations could not have the effect to practically annul chapter 201 of the Laws of 1891, passed seven years after the act creating the live-stock sanitary commission. The secretary of agriculture could not and had not attempted to defeat or break the force of the act of congress under consideration, but his acts, so far as they are shown by the evidence in the case, have been directed to prevent the spread of the disease, not to facilitate it. The evidence in the case clearly shows that the representatives of the company were fully informed of the fact that the cattle came from Pecos county, Texas, which is not only south of the south line of Kansas, but south of the thirty-fourth parallel of north latitude. A glance at the map would have disclosed the fact that Pecos county extends to the boundary of the infected district as designated by the secretary of agriculture, and would also have shown that the boundary marked out by him, which extends east and west along the north boundary of Crockett county, turns when it strikes the Pecos river, and runs south and east, following the course of the river. The evidence shows that these cattle were kept on a large ranch, having the Pecos river for its boundary ; that it was not inclosed with any fence, and that the cattle could and did range across the river into Val Verde and Crockett counties, included in what the secretary recognized as the infected district. The statutes of this state prohibit the introduction, not of all Texas cattle, as the statute of Missouri did, but of all cattle capable of imparting the Texas or splenic fever, and provide that the fact that such cattle are brought into this state from south of the thirty-seventh parallel of north latitude between the 1st of February and the 1st of December shall be taken as prima facie proof that they are capable of imparting such fever. The cattle were in fact capable of communicating the Texas or splenic fever. They did communicate it. They did spread it so as to infect and destroy great numbers out of the domestic herds in Chase and Lyon counties. The company’s agents knew before they made the contract with Hosier Bros, that the cattle were to be driven from Hartford to Brogan’s ranch. They brought the infected cattle into the state to the station of Hartford fully cognizant of the purpose of Hosier Bros, and the Brogans, and did knowingly aid them in carrying out that purpose. They are responsible for all the direct consequences that have ensued therefrom. They acted, not only in direct violation of the statutes, which have been found by long and bitter experience to be so essential to the protection of the domestic cattle of this state, but they acted in direct violation of section 6 of the act of congress before quoted. The regulations established by the secretary of agriculture contain nothing tending to exempt the company from liability, and the secretary had no power under the act of congress to make any regulations which would have the effect to abrogate in any degree the statutes of this state. The permits offered in evidence afford no protection to the company, and the court did not err in excluding them. The evidence shows that ticks, which are regarded as a strong, if not absolutely certain, indication that the cattle are capable of communicating the disease, were plainly and easily discernible on many of the cattle; that they were visible to the naked eye, and wfere seen by witnesses who observed the cattle at Fort Worth and at Parsons. Even if this were an action at common law for negligently spreading the disease, in view of the now generally known fact that the disease of Texas of splenic fever may be communicated to the domestic cattle of Kansas by Texas cattle, and of the legislation in this and neighboring states, and by congress, recognizing the existence of the disease, a very strong case is made by the testimony against the company. "We find no inconsistency between the special findings and general verdict of the jury. We think the instructions were eminently fair, if not even more favorable than the law is, toward the railroad company. They were told in the fourth instruction that they must find from the evidence that Texas cattle were brought into the state by the defendant; that the cattle of the plaintiff and the cross-petitioning defendants became infected by the disease imparted to them by such Texas cattle, and that such disease was Texas, splenic, or Spanish fever, and “ thatthe officers, employees or agents of the railway company defendant had knowledge that such Texas cattle transported by it to this state were liable to impart such disease to the native cattle of this state, or that they ought, by the exercise of diligence and care, to have known of the dangerous character of these cattle, and that they -would or were liable to impart said disease to the native cattle of this state.” There is nothing in the instructions conflicting with the portion of the charge above quoted. Under this, no harsh rule requiring the company to act at its peril with reference to the shipment was declared, but the jury were told that it would only be liable in case its representatives failed to exercise care and diligence to ascertain whether the cattle were liable to impart the disease or not. Though presented by counsel in various forms, what we have said in disposing of the main contention also answex-s the substance of the various claims with x’efex’ence to the merits of the case. III. A question of practice which at first may seem serious is presented by the record. The sxxit was brought against Hosier Bros., Brogan & Sons, and the railway coxnpaxiy, agaiixst all of whom a recovery was sought as joint wrong-doers, acting ixx concert in- - bringing in the cattle in violation of the statute. It is alleged that the cattle belonged to Hosier Bros., and the plaintiff claimed a lien on them under the provisions of the statute. One hundred and forty-five parties defexidaxxt, who had also suffered loss from the same cause, axxd Avho also claimed a lien on the same cattle for their damages, were joined as parties defendant. They answered settixxg up causes of action against the same parties on the same grounds, and in all respects similar to the caxxse of action stated in the plaintiff’s petitioxx. The plaintiff’s case and the cross-demands of all these defendants who claimed affirmative relief were tried together, and 146 different verdicts were rendered against the railway compaxxy by the same jury. It is coxitended that this could xxot laxvfully be done. There was xio dexmirrer by the railway company oxx the ground of a xnisjoinder of causes of actioix, nor xvas there axxy request for a separate jury to try the issues between the railroad company and each cross-petitioning defendaxxt. The questioxi xvas raised by motion to disxniss the petitioxx axxd also the cross-petitions, oxx the ground that there xvas an excess of parties, axxd objections were interposed to the evidexxce oxx the saxne ground. Sectioxx 36 of the code provides.: “Any person may be xnade a defexxdant who has or claims an interest ixx the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein.” Section 83 provides : “The plaintiff may unite several causes of action in the same petition, whether they be such as have heretofore been denominated legal or equitable, or both, where they all arise out of either one of the following classes: First. The same transaction or transactions connected with the same subject of actiozi. . . . Third. Injuries, with or without force, to person and property, or either. . But the causes of action so united must all belong to one of these classes, and must affect all the parties to the actiozi, except in actions to enforce mortgages or other liens.” Section 3 of chapter 201 of the Laws of 1891 gives to the parties injured by reason of the communication of Texas, splenic, or Spanish fever a lien for their damages on the cattle which have communicated it. This lien was concurrent as to all of the parties who sought to recover in this case. Neither one had a right to assert his lien to the exclusion of any other. It is impossible to perceive how the rights of the parties to satisfy their claims out of the proceeds of the cattle could have been properly determined, or how, in the language of section 36 above quoted, there could have been a complete determination or settlement of the questions involved, without the presence as parties of all persons entitled to a lien. If only two persons had suffered loss, the determination of their respective rights in one actiozi would not seem a very remarkable practice. It is only because of the very great number of parties interested in this case that the question is made to appear so serious. The principle applicable, however, is the same whether there be two claimants or 200. The right of the plaintiff to join all against whom a recovery is sought does not seem to be seriously questioned, and does not admit of doubt. We think there was no error in the rulings of the court upon these matters. The case of Harsh v. Morgan, 1 Kan. 293, and Palmer v. Waddell, 22 id. 352, and other cases cited by counsel, do not appear to us to have any application to the question before us. Complaint is also made of the manner of preparing and receiving the verdicts. Under the circumstances of this case, and in the absence of any demaiid for separate trials, we are unable to perceive tlu¡!t there was any error in the course adopted by the court. Among the verdicts returned by the jury there was one in favor of J. W. Ketchem for $391. After the jury had been discharged for the term, the attorney for Ketchem moved to correct the verdict in his favor by adding $417 thereto, which, it is claimed, was shown to be due him by a special finding of the jury, in addition to the amount allowed in the general verdict. On his application, the foreman of the jury was brought into court and permitted to sign the special finding and an amended verdict for $808, and on this amended verdict judgment was rendered in his favor against the railway company. There is nothing in the record brought to this court showing that this special finding was returned with the other special findings. The signature of the man who had been foreman of the jury, after they were all discharged for the term, with or without leave of the court, could not make a verdict, nor supply a substantial defect in one. If the special finding had been duly returned into court it would control the general verdict. Whether it is absolutely indispensable that answers to special questions should be signed by the foreman we need not now determine, for we are of the opinion that the record fails to show that the special finding was returned by the jury at all. It follows, therefore, that the judgment in favor of Ketchem must be modified to. $391, the amount allowed by the general verdict of the jury. In all other respects the judgment is affirmed. All the Justices concurring.	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The opinion of the court was delivered by Johnston, J. : The controversy in this case is as to the relative priority of two mortgages upon a single tract of land situated in three counties. One of them belongs to Pingry, who conveyed the land to Rowlen, and, simultaneously with the delivery of the deed, Rowlen delivered to Pingry a mortgage upon the same land for a part of the purchase-money. The other is the Ely mortgage, which was executed and delivered by Rowlen before Pingry conveyed the land to him, and before he had any title thereto. The land was conveyed from Pingry to Rowlen on March 30, 1889, and the mortgage to Pingry was delivered at the same time. The Ely mortgage was recorded in Anderson county, where a portion of the land was situated, on March 29, 1889, which was one day before any title had vested "in Rowlen. Ely claims priority by virtue of the prior recording of his mortgage in the several counties in which the land was situated, while Pingry claims -that he was not bound to search- the records for conveyances made by his grantee before the execution of his deed, and while the grantee was a stranger to the‘title. He also insists that The Investment Banking Company, whose officers negotiated the loan with Rowlen, had knowledge of the record title, and that such knowledge as they possessed must be imputed to Ely, for whom they acted. After the land was actually conveyed to Rowlen, the first mortgage to be recorded was that given to Pingry for the purchase-money, which was filed for record in Anderson county on April 2. The Ely mortgage was filed for record in Miami county on April 3, when the records of that county showed the title to be in Pingry. It was filed for record in Franklin county on April 6, when the records of that county indicated that the title was in Pingry. The Pingry mortgage, however, was not recorded in Franklin county until April 17, nor in Miami county until April 19. Rowlen had neither a legal nor equitable title to the land at the time the Ely mortgage was executed and delivered, and he had not even possession upon which to base a right to mortgage. The possession remained in Pingry until the deed was delivered, and as Rowlen had no possession nor any vestige of title, the mortgage which he made could not attach before the conveyance by Pingry to him. It would seem that the priority of the record of the Ely mortgage could not avail as notice to Pingry of its existence. In such a case it has been held that “A vendor of real estate has no occasion to examine the records for incumbrances created prior to his conveyance. He has the power to protect himself by a qualified or conditional transfer, or by any legal mode of creating a lien to secure himself for unpaid purchase-money. When he conveys, and instantly takes a reconveyance as such security, no authority is needed to demonstrate the gross injustice of permitting, a prior mortgage from intervening to his prejudice.” (Dusenbury v. Hulbert, 59 N. Y. 541.) In Schoch v. Birdsall, 48 Minn. 441, a somewhat similar case, it was said that the grantor “was not bound to search for conveyances made by his grantee while the latter was a stranger to the title, and before the execution of his deed, and the defendant whose mortgage ’ was recorded before plaintiff’s conveyance was not a subsequent bona fide mortgagee within the meaning of the recording act.” See, also, Turk v. Funk, 68 Mo. 18; Ford v. Unity Church, 120 id. 498 ; Boyd v. Mundorf, 30 N. J. Eq. 545 ; Heffron v. Flanigan, 37 Mich. 274 ; Loan Co. v. Maltby, 8 Paige, 361; Gould v. Wise, 32 Pac. Rep. 576 ; 1 Jones, Mortg. § 568 ; 1 Devl. Deeds, § 724. Apart from this consideration, the facts of the case and findings of the trial court in respect to the rela tions existing between Ely and The Investment Banking Company and its managing members require an affirmance of the judgment. It is, in effect, found that the members of the company, in making the loan, were the agents of Ely, and that he is chargeable with the notice which they had, and is bound by what they knew or should have known. Pounds, the vice-president of the company, had been acquainted with Ely for many years, and had made him a visit shortly before the making of the loan with a view of inducing Ely to allow the company to invest his money in Kansas securities. In accordance with arrangements then made, Ely forwarded money to them for investment, and it was this money which was loaned by the company to Rowlen. It is true that the mortgage first considered was not the one which was finally accepted, but it was made by the same man and covered much of the same land; and it further appears that in making the investment in both instances Ely relied upon the discretion and judgment of the members of the company, and especially Pounds, its vice-president and active official. Ely resided in Ohio, and had no knowledge in regard to the Pingry land or the title thereto, except what was obtained through the company. The money was forwarded by Ely on March 18, 1889, and was received by the company two days later. Although the loan first considered was not made, the money was allowed to remain with the company until it was invested in the Rowlen mortgage, on March 28. When the money was received it was credited to Ely on the books of the company, and when the Rowlen note and mortgage were taken, on March 28, they were at once transferred to Ely, and he was charged upon the books of the company with the note and mortgage. The note and other papers were forwarded to Ely on March 29, and the acknowledgment of the receipt of the same on April 2 indicates the relations which existed between him and the members of the company. He said: “I thank you and your Mr. Pounds for the care you have taken in placing this loan, which appears to me to be in all respects first-class, and hope it will prove so.” It therefore appears that Ely furnished the money to the company for in: vestment; that he depended on the members of the company for the safety of his investment, and trusted to them to place the loan which was made. By their action Ely became the owner of the Rowlen note and mortgage on March 28, 1889, and instead of repudiating their action, his subsequent conduct has been rather to ratify and adopt it as his own. As they were agents of his in the transaction, he is held *° know what they knew, and what they, would have learned by a reasonable inquiry and investigation. Although Rowlen told them that he owned the land, no abstract of title was furnished, nor did they make an examination of the public records to ascertain the condition of the title. One of the managing members of the company visited the land, and discovered that it was occupied by and in possession of another. At the time the loan was negotiated, Rowlen notified them that there was an incumbrance upon the land, but they left it to him to discharge that incumbrance. They therefore knew that the mortgage taken was not a first mortgage, and, having actual knowledge that the land was incumbered, prudence required that they should follow up the clue and ascertain from those in possession and the records what was the true state of the title. If they had done so, they would have found that Pingry was the absolute owner of the land, and in possession of the same, and that Rowlen had no title which he could incumber or convey. Ely, therefore, did not part with his money on the faith of the record, and so far as the recording goes he does not occupy the position, nor is he entitled to the protection, of an innocent and bona fide purchaser or holder. (Mitchell v. Aten, 37 Kan. 33.) See, also, School District v. Taylor, 19 Kan. 287 ; Greer v. Higgins, 20 id. 420 ; Dusenbury v. Hulbert, supra. As Ely cannot be regarded as the bona fide purchaser of a mortgage executed by one holding the record title or mortgage interest, the principles which he invokes and the cases which he cites are not applicable. If the company had taken and held the mortgage, the managing members thereof could not have claimed to have been without notice in regard to the title, nor have claimed any benefit on account of the prior recording of the Rowlen mortgage, and Ely, for whom they were acting, occupies no better position. When he acquired the mortgage, Pingry was the actual and apparent owner of the land, and Ely could not and did not therefore part with his money on the faith of a title in Rowlen. We think the testimony is sufficient to sustain the findings of the court, and that they support the judgment which the court rendered. The questions raised upon the pleadings and upon the admission of testimony are not such as to require special comment. Judgment affirmed. All the Justices concurring.	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The opinion of the court was delivered by Allen, J. : The plaintiff in error, as plaintiff below, brought this action against the railway company to recover damages claimed to have been caused by the negligence of the defendant's servants in the operation of its railway. The plaintiff was employed as a section-hand at Oafcley. On the 14th of September, 1889, he was directed by the foreman under whom he was working to level cinders between the rails of the main track not far from the station at Oakley. While so engaged working with a shovel, with his head bent down, he was struck by an engine coming from the west, knocked senseless, and one of his legs broken. It appears that at about the time of the accident the whistle of the engine was sounded and probably the bell was rung, but the plaintiff testified that he did not hear any warning, and the testimony of the other witnesses is to the effect that the sounding of the whistle was at about the same time that the plaintiff was struck. The foreman called to him at about the same time that the whistle was sounded, but as he was at some little distance from him he did not hear it. The plaintiff sought to prove what the duties of a section-foreman were, and especially his duty with reference to keeping the time- and notifying the men when at work on the track of the approach of trains. This testimony the court excluded. After all of the testimony on behalf of the plaintiff had been submitted, the court sustained a demurrer to it, and rendered judgment in favor of the defendant for costs. We are not informed by the record on what ground the court acted; whether it held that there was no proof of negligence on the part of the defendant’s servants, or that there was an affirmative showing of contributory negligence on the part of the plaintiff. It appears that the wind was blowing very hard and the air filled with dust, while the plaintiff himself testified that he was working with his face toward the west, that he was in such a stooping position that he did not see the approaching train, and that he did not hear any warning of its approach from any source. We think it was a question of fact, which should have been submitted to the jury, whether the engineer in charge of the train was negligent in failing to give the danger signal before he did, and also whether it was negligent in the foreman to place the plaintiff at work on the track at the time a train was nearly ■due, without keeping watch and warning him of its approach in time to avoid injury. It was also proper for the plaintiff to show what the duties and practice of the foremen were with reference to keeping time and notifying the men of approaching trains, and the court erred in excluding this evidence. It had some heai’ing both on the question of negligence on the part of the foreman and of contributory negligence on the part of the plaintiff. Nor can we say, as a matter of law, that the plaintiff was guilty of contributory negligence. His position was not that of a trespasser, nor of a traveler crossing a railroad track. He was at his post of duty, though in a situation of danger. Whether the defendant ought to have kept his eyes diverted from his work frequently enough to detect the approach of a train from either direction, or whether he might rely to some extent at least on receiving warning either from the foreman or from the engineer of an approaching train, is a question of fact proper for the determination of a jury. (Goodfellow v. Railroad Co., 106 Mass. 461; Crowley v. Railroad Co., 18 Am. & Eng. Rld. Cases, 56; Criswell v. Railroad Co., 33 id. 232 ; Sullivan v. Mo. Pac. Rly. Co., 10 S.W. Rep. 852; Jones v. Railway Co., 128 U. S. 443.) The judgment is reversed, and a new trial ordered. All the Justices concurring.	[ -96, 120, -100, -113, -86, 105, 42, -38, 101, -95, -89, -41, -113, -61, 17, 99, -25, 15, -48, 43, 86, -77, 23, -93, -46, 83, 115, -124, -107, 78, -26, -13, 77, 48, 74, 85, -25, 72, 69, 20, -114, 46, -88, -24, 57, 56, 48, 58, -42, 79, 17, -98, -77, 42, 28, -61, 104, 61, -21, -71, -64, 112, -102, -113, 119, 0, 34, 6, -98, 7, 88, 60, -112, 21, 2, -68, 115, -90, -107, -12, 41, -7, 72, -26, 98, 33, 29, 43, -84, -88, 62, 126, -97, -89, 54, 40, -85, 47, -105, -115, 43, 84, 38, 126, -24, 93, 88, 48, 1, -117, -76, -111, -35, -92, -106, 47, -53, -87, 22, 96, -56, -86, 93, 69, 50, -97, -97, -98 ]
The opinion of the court was delivered by Allen, J. : The first specification of error discussed in the' brief of counsel for plaintiff in error is in the admission of the deposition of F. J. Atwood, taken in the case of the Parlin & Orendorff Company v. Bartlett, in June, 1889. Atwood was the president and general manager of the plaintiff bank, not only at the time the deposition was taken and of the trial of this action, but at and for a considerable period of time before the chattel mortgages under which the plaintiff claimed were taken. The defense of the sheriff was that the transaction was fraudulent; that for some time prior to the execution of the mortgages Bartlett had been buying great quantities of goods on the recommendations of Atwood as to his financial standing made to the wholesale dealers; that Atwood, as the manager of the bank, conspired with Bartlett and assisted him to get these goods on credit, for the purpose of defrauding the sellers, and of securing payment of a large indebtedness to the bank by a mortgage on the goods so purchased. The first attachment against Bartlett was issued in a suit brought by the Parlin & Orendorff Company, and levied on the same day that the chattel mortgages were executed, but after' they were filed in the office of the register of deeds. Soon afterward they took the deposition of Atwood in that case, before a notary public. On the trial of this action he attended as a witness, and testified on behalf of the plaintiff. On cross-examination he was asked some questions with reference to this deposition. In the course of the introduction of testimony on behalf of the defendant this deposition was offered in evidence, and objected to on the ground of incompetency, and-because Mr. Atwood was present. The defendant thereupon called Atwood, and exhibited to him the deposition. He admitted that the deposition was taken and subscribed by him; that he had read it over before signing it; that he was president of the plaintiff bank at the time it was taken, and was still its president and managing officer. The court thereupon overruled the objection, and the plaintiff excepted. The deposition, which is very long and very important, was thereupon read to the jury. It contained Atwood’s testimony as to the dealings between Bartlett and the bank, and with reference to various other matters connected with the case. It was error to allow the introduction of the deposition. Although Atwood was the president and managing officer of the bank, he could not bind it by a mere admission, not made in connection with the discharge of any duty nor the transaction of any business for the bank. (Dodge v. Childs, 38 Kan. 526 ; Tennis v. Rapid Transit Rly. Co., 45 id. 503; Coal Co. v. Dickson, 55 id. 62.) Was this error prejudicial to the rights of the plaintiff ? After concluding the reading’of the deposition, Atwood was again called to the witness-stand, and testified, without objection or exception, that he had recently read the deposition, and that he had been present in coiirt while it was read to the jury. He was then asked whether there was any statement con tained in the deposition as read which he desired to correct. He made one slight correction, and as to the rest said that, if he were allowed to revise the matter, he would change the wording in several cases but not the sense of it, and that, with the correction he then made, the deposition was correct; that it would be his testimony if he were giving it now; that it was his testimony. On rebuttal, Atwood was again called as a witness for the bank, and testified at length. No material contradiction between his testimony in the deposition and on the witness-stand is apparent. Atwood, as president, had authority to represent the bank in this litigation. (National Bank v. Berry, 53 Kan. 696.) He and the attorney appearing for the bank could bind it by admissions made in the progress of the trial. On the witness-stand, Atwood not only admitted that the deposition had been taken and subscribed by him, but swore that it contained his testimony, and that it was true. This he stated without objection from his counsel, and we think, in view of the full opportunity offered for correcting any misstatement, and also for giving any further testimony desired, that the error in admitting the. deposition was cured. Although the practice followed is not to be commended, the plaintiff in error has not pointed out any particular in which it was injured by the manner of getting Atwood’s testimony before the jury. The bank nowhere challenges Atwood’s truthfulness, but maintains it; nor is any attempt made to point out material error in the testimony contained in the deposition. Where the plaintiff in error asserts the truth of every statement which it contains, we cannot hold that material error -was committed in its admission. (C. K. & W. Rld. Co. v. Prouty, 55 Kan. 503.) Error is also alleged in the admission of a letter written by Atwood to the Abbott Buggy Company on June 7, 1889, and a telegram by the buggy company to the bank sent from Chicago on the 8th. It is contended that these were transactions after the attachments were made, and after the occurrence of the events to which they referred, and that they were objectionable for similar reasons to those urged against Atwood’s deposition. The letter and telegram were admissible on other grounds. Although the chattel mortgages had been executed and attachments had been levied on the goods, the rights of the parties had not been determined. The bank was still seeking to hold the property as against creditors, and its communications with them, through its president, with reference to litigation pending, or prospective, and with reference to the action they might or ought to take for the protection of their interests, and with reference to the claims of. the bank, were all properly admissible in evidence, because in these matters Atwood spoke for the bank and represented its interests. Error is claimed in the admission'of ■ the appraisement in the case of Parlin & Orendorff Company v. the bank, but we think it was properly admitted A part of it had been offered in evidence by the plaintiff, and Mr. Belisle, a competent witness, who was one of the appraisers, was called and testified that the value of the goods was correctly set down in the inventory. We find nothing substantial in the objection to the testimony of Day with reference to his having written a letter to his house which was not read in evidence. Complaint is made of the following portion of the instructions : “Of course, if any material false representations were made by Atwood, and were known by him to be false at the time, and were made for the purpose of concealing Bartlett’s true condition, and to enable him to purchase goods when he otherwise could not have done so, then such acts on the part of Atwood would amount to a fraud as to Bartlett’s creditors whose claims were thus created, and the hank would have no right to take a mortgage on goods thus obtained ; and, if it did take such mortgage under such circumstances, it would be void absolutely.” It is contended that a mortgage taken under such circumstances would be voidable only, while the court charged that it would be void. We think the court correctly declared the law as applicable to this case. This was a contention between the bank, claiming under the mortgages, and the sheriff, who represented attaching creditors. As to such creditors, the mortgage was either valid or void. There was no question of voidability as to them, nor do their rights to rescind the sales of goods made to Bartlett on the ground of fraud on the part of the purchaser, and to recover the goods so sold, affect the question in any manner of the validity or invalidity of the plaintiff’s mortgages. The plaintiff cannot maintain a cause of action based on a mortgage taken for the purpose of perpetrating a fraud on Bartlett’s creditors. ( Wafer v. Harvey County Bank, 46 Kan. 597.) Complaint is made of the form of the verdict, and of the judgment rendered thereon, but we find them sufficient. We have carefully examined the voluminous record brought to this court, and find in it abundant evidence to uphold the verdict and judgment. It is therefore affirmed. Johnston, J., concurring.	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The opinion of the court was delivered by Aleen, J. : It is only necessary to consider a single question presented by the record before us. The plaintiff's claim rests entirely'on the chattel mortgage given by Chalfant to Stanford. It is not claimed that the plaintiff ever had possession of the property either before or after its seizure by the marshal. There is no direct testimony in the record as to the transaction between Chalfant and Stanford. The only evidence with reference to it is the promissory notes and the chattel mortgage, which were offered in evidence, and the testimony as to surrounding circumstances, and their declarations with reference to the matter. There is no evidence showing that any consideration other than the notes and mortgage passed from Chalfant to Stanford in payment for the horses. The mortgage under which the plaintiff claims contains a provision by which the mortgagor reserves the unrestricted right to sell the mortgaged property, followed by the statement that the proceeds are to be applied to the payment of the notes. There is no provision as to the manner in which it shall be so applied, nor does the instrument in express terms nor by fair implication make the mortgagor the agent of the mortgagee to receive the purchase-money. The right to sell would appear rather to be reserved to him as mortgagor, leaving the mortgagee no security after the mortgaged property is sold, but the mere personal liability of the mortgagor. It is insisted that this court has sustained the validity of chattel mort gages containing similar provisions. In the case of Frankhouser v. Ellett, 22 Kan. 127, it was held that a chattel mortgage might contain a valid stipulation for the retention of possession of the mortgaged property by the mortgagor; and, further, that when it was so retained, and by an agreement outside the mortgage the mortgagor was permitted to dispose of the goods in the ordinary course of a retail business, and to use a portion of the proceeds in support of his family, paying the remainder in discharge of the mortgage debt, the transaction was not, as a matter of law, rendered fraudulent and void as against creditors, but would be upheld or condemned according as it was carried out in good faith or not. In that particular case the mortgage was held valid, the chief justice dissenting. In the case of Leser v. Glaser, 32 Kan. 546, a chattel mortgage was given which, by its terms, permitted the mortgagor to retain possession of the property, which was also a stock of merchandise, and to sell the same in the regular course of trade at retail. It was claimed that there was actual fraud. The mortgage was held void, not, however, solely because of its provisions, but under all of the testimony with reference to it. The correctness of the doctrine announced in the case of Frankhouser v. Ellett, supra, has been often questioned, but the case has never been overruled. The cases in which it has been applied have been of mortgages on stocks of merchandise purchased for sale at retail. In the case of such a mortgage, the retention of possession by the mortgagor would be of no benefit to him unless permitted to continue the sale of the property in the usual course of trade, and thus continue his business and realize the best obtainable price in the retail market. Where an arrangement is made between the mortgagor and the mortgagee, by which the mortgagor acts in good faith strictly as the agent of the mortgagee, to sell the property at retail for his benefit, the transaction has been upheld by this court; and in some cases the court has gone so far as to uphold an arrangement by which the mortgagor was allowed to use a portion of the proceeds for his support. The view taken has been that the sale of the goods at a favorable price would necessai’ily entail expense, and that, where the mortgagor consented to and did act as the agent of the mortgagee in effecting the sale for a less compensation than it would have been necessary to pay to a stranger, the fact of making such an allowance could not be held conclusive proof of fraud. (Hughes v. Shull, 33 Kan. 127 ; Howard v. Rohlfing, 36 id. 361; Whitson v. Griffis, 39 id. 211 ; Bliss v. Couch, 46 id. 400 ; Implement Co. v. Parlin & Orendorff Co., 51 id. 632 ; Lorie v. Adams, 51 id. 692.) In this case, as in that of Leser v. Glaser, supra, all of the facts disclosed by the record concerning the transaction between Stanford and Chalfant indicate that their purpose was to defraud. The plaintiff resided a long distance away from the parties to the transaction. The power to sell the mortgaged property is unrestricted as to price, as to the time of sale, as to the purchaser, and as to the mode of payment. The only provision that could possibly be construed into an agency is contained in the words, “the proceeds of sale to be applied in payment of said notes.” This is nothing more than an agreement that after the sale of the mortgaged property the mortgagor will turn over to the mortgagee the proceeds. After the sale the mortgagee’s security is gone ; the title to the property has passed by virtue of the authority reserved to the mortgagor in the very instrument itself. The claim, then, of the mortgagee is nothing more than a personal claim against his debtor. In this case the mortgaged property consisted of horses kept for breeding purposes. In order that the mortgagor might retain the beneficial use of them, it was not necessary, as in the case of a stock of merchandise kept for sale by a dealer, that he should be permitted to sell them. It was only necessary that he should be permitted to continue to use the horses for the purposes for which they were purchased. Instead, however, of reserving the right so to use them, he reserves the right to make an absolute sale of the whole mortgaged property in gross. The result of upholding such a mortgage as this is to place the property beyond the reach of all other creditors of the mortgagor, and make it a valid security, so far as their claims are concerned, while leaving it altogether optional with the mortgagor as to how long it shall remain as a security for his debt to the mortgagee. Whenever he sees fit to exercise his power to sell he can at once cancel the security. In order to uphold this as a valid mortgage we must extend the doctrine announced in Frankhouser v. Ellett. This we are unwilling to do. That case was an extreme one, and the doctrine announced in it is not to be extended to cases not clearly within the rules there declared. In this conclusion we are sustained by the great weight of authority. (Jones, Chat. Mortg. §422.) The transaction between Stanford and Chalfant rests for its validity on the presumption of good faith which is applied to the dealings of men. The evidence in -the case is sufficient to overcome this presumption, and to establish its fraudulent character, without reference to the provision contained in the chattel mortgage ; and when this is added, ho doubt is left of the fraudulent purpose of these parties. The reservation of a right to sell the property by the mortgagor was sufficient at least to put the plaintiff in this case on inquiry as to the character of Chalfant’s title, and therefore to leave him in no better position than the party under whom he claims. The plaintiff made no attempt to take the property into his possession from Chalfant, nor to recover it from the marshal, until after judgment had been rendered in the United States court ordering the property to be sold. He seems to have placed unusual reliance on the strength of his security, notwithstanding it contained a provision by which he might be deprived of it on any day. While, in the books, such mortgages are usually spoken of as fraudulent, possibly it would be more accurate to speak of them as inoperative, because they are contradictory in their terms, the conveyance of title being effectually defeated by the power reserved by the mortgagor to defeat the title and pass it to another. The judgment of the trial court was right, and is affirmed. All the Justices concurring.	[ 113, 126, -40, 45, 90, 96, -86, -101, 97, -124, 55, 83, 105, 67, 4, 41, -28, 15, 65, 106, 87, -77, 39, -55, -46, -6, -47, -35, -79, 76, -20, 71, 77, 32, -54, -41, 102, -101, -63, 84, 46, 5, -104, 69, -39, 16, 52, 43, 20, 74, 97, -57, -93, 38, 29, 71, 9, 40, 91, 125, -48, -8, -85, -113, 95, 7, 51, 36, -84, 103, -6, 40, -128, 113, 1, -24, 115, -74, -122, 84, 9, 27, 9, 98, 98, 0, 97, -17, -4, -120, 47, 127, 31, -90, -112, 88, 35, 105, -74, -99, 124, 0, 47, 126, -26, -99, 28, -20, 31, -49, -42, -77, -115, 126, -102, 11, -34, -125, 49, 113, -52, -16, 77, -63, 60, -101, -114, -3 ]
The opinion of the court was delivered by Martin, C. J. : I. The railway company contends that the evidence is not sufficient upon which to base a judgment against it. Some of the facts were contested. The conductor and the head brakeman testified that they gave no order to Roy Wilson or anyone else to jerk off or pull off young Mitchell from the train; but the jury found, upon evidence which we must hold sufficient, that such order’ was given by the conductor. We must therefore accept the finding of the jury touching this important fact in the case. Our attention is called to A. T. & S. F. Rld. Co. v. Gants, 38 Kan. 608, 625, where this court, treating of the ejectment of a trespasser from a passenger-train, said : ‘1 By resisting to the utmost of his power and ability, Gants invited force, and he ought not to complain of the force used, if there was no intention upon the part of the conductor or his assistants to commit unnecessary injury.” But in that case the principle was expressly recognized that care must be taken not to expose the person of the trespasser to serious injury or danger; and it was a question of fact, to be determined by the jury in this case, whether or not the pulling or jerking of the boy from the train by order of the conductor while it was running at the rate of speed shown by the evidence, which was 9 or 10 miles an hour, was such an act as to expose the boy to 'serious injury or danger. We do not deny the right of those in control of rail way-trains to eject a trespasser therefrom even when moving, but when the speed, is so great that removal from the train is necessarily attended with great danger of serious injury to the person of the trespasser such right does not exist, and whether the circumstances are such as to justify the ejection of a trespasser from a moving train is a question of fact that must be submitted to the jury, under proper instructions of the court. (K. C. Ft. S. & G. Rld. Co. v. Kelly, 36 Kan. 655, 657, 658.) II. The plaintiff in error complains of the instructions given by the court, and says that under them a recovery might be had for mere negligence in removing young Mitchell from the train, the term “reckless conduct" meaning nothing more, and being coupled disjunctively with the words “wilful," “wanton," and “malicious." It is contended that a trespasser in such case has no remedy, unless the act of the defendant resulting in the injury was either wilful, wanton, or malicious, and the cases of U. P. Rly. Co. v. Adams, 33 Kan. 427, 429, A. T. & S. F. Rld. Co. v. Gants, supra, and Tennis v. Rapid Transit Rly. Co., 45 Kan. 503, 507, are cited in support of this position, but they are not inconsistent with K. P. Rly. Co. v. Whipple, 39 Kan. 531, 540, where it was said that “the fact that one has carelessly put himself in a place of danger is never an excuse for another recklessly or wantonly injuring him ’ ’ ; and the definitions of recklessness and wantonness given by the court below were taken from the opinion in that case, where it is further stated, that “in popular use, and-by our decisions, recklessness and wantonness are stronger terms than mere ordinary negligence, and therefore, if a person recklessly or wantonly injures another, such person may be subject to damages, even if the other party has been guilty of some negligence or is a trespasser.” As the court carefully used and fairly defined the term “reckless conduct” and “recklessly” in connection with the facts in the case, the plaintiff in error has no substantial ground of complaint in this regard. III. The jury returned a verdict in favor of the plaintiff below for $9,000. On the hearing of a motion for a new trial, the court permitted the plaintiff to reduce the damages in the sum of $2,500, and stated that, on failure to do so, a new trial would be ordered ; and the reduction being accepted, judgment was rendered for the sum of $6,500. The railway company contends that the court had no right to make this order, but should have awarded a new trial, by reason of the allowance of excessive damages given under the influence of passion and prejudice. The court filed a written opinion on the decision of the motion, and in this there is no suggestion of passion or prejudice on the part of the jury. But the court, after reviewing the decisions of this court in personal-injury cases, held that $6,500 was a reasonable sum, and that all above that amount was excessive. In Mo. Pac. Rly. Co. v. Dwyer, 36 Kan. 58, 74, it was held that this court had the right in such cases to suggest the reduction of damages to a reasonable sum, and to permit the plaintiff to elect to take judgment for the reduced amount, or compel him to accept a new trial. And this being permissible, we are aware of no reason for the denial of the exercise of like power by the trial court, which is often better able than the appellate court to act intelligently in the premises; and the right of the trial court to compel a remission of part of the verdict in damage cases was upheld in Broquet v. Tripp, 36 Kan. 701, 704. There is no conflict between these cases and P. & P. Rld Co. v. Montgomery, 46 Kan. 120, which was an award of damages in a condemnation proceeding depending upon estimates given by witnesses respecting values forming a basis for the verdict, and it was evident from the record that the jury had gone to the extreme limit of the highest estimates on each item, and the court compelled a large gross reduction, not explainable from the record on any other hypothesis than that the verdict was unfair and indicative of passion and prejudice of .the jury; and wherever this is apparent a new trial must be granted. But in personal-injury cases, as stated by the court below, no certain rule of damages can be given, and the jury were properly instructed that, in the event of a verdict in favor of the plaintiff, they should award such sum as in their sound judgment was just and reasonable for the injury suffered. The mere fact that the trial court, on a review of our Kansas decisions, came to the conclusion that the award was larger than had been generally sustained by the precedents in this state, was no evidence that he considered that the jury was actuated by passion or prejudice in fixing the amount. The case seems to have been fairly tried by the court and jury, and the judgment must be affirmed. All the Justices concurring.	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The opinion of the court was delivered by Martin, 0. J. : It is unnecessary to consider whether the service by publication was or was not void, • for it was attacked directly by motion in good season, and therefore we have the question before us whether the proceeding was regular or erroneous. It is well settled that, with some exceptions, not including this controversy, the jurisdiction of a court does not extend beyond the boundaries of the state, so as to bind personally by its adjudication those outside of such boundaries. No personal judgment against a non-resident can be obtained, unless he shall enter his appearance or be served with process within the state, although any property which he may have within the jurisdiction may be subjected to any just demand against him, and any right, title, lien or interest that any other person may claim in such property may also be the subject of adjudication. In cases of the latter class, service may be made by publication. (Civil Code, § 72.) It would be an abuse of process to compel a non-i’esident owner of property located here to subject himself to the jurisdiction of the courts of this state upon a mere personal claim, as a condition of his right to litigate as to the title or status of such property. As to personal claims against him, a nonresident has a right to defend against the same in his own courts as long as he chooses to remain there, without going into another jurisdiction. The jhaintiff below had a right to service by publication for the purpose of establishing an interest in the lands described, but, on failure in that respect, he could not recover a personal judgment for damages for the value, of such interest. In the case of a creditor proceeding by publication, the fact that he is seeking to subject property of the defendant within the jurisdiction must affirmatively appear. (Repine v. McPherson, 2 Kan. 340, 346.) In a suit against a foreign corporation, where its treasurer, found within the state, is garnished, but he has no funds of the corporation in his hands here, the court obtains no jurisdiction over the corporation or its property in another state on service against it by publication, (Wheat v. P. C. & Ft. D. Rld. Co., 4 Kan. 370,) and where the affidavit for publication does not state directly, inferentially, or in any other way that the' action brought is one of those mentioned in section 72 of the civil code, it is fatally defective, and service by publication cannot be obtained thereon. (Harris v. Claflin, 36 Kan. 543.) In Neal v. Reynolds, 38 Kan. 432, 435, a party sought to^ rescind a contract for the exchange of real estate by an action properly brought in the county where part of it was situated, against residents of another county, where they were summoned. After appearance of the defendants, the plaintiff, obtaining leave to amend, added another cause of action for damages for breach of warranty as to some of the exchanged lands, thus blending a local with a transitory cause of action, and it was held that the added cause was properly struck out on motion of the defendants ; that the plaintiff should be confined to the cause of action which authorized service of summons in another county, and to allow him to do more was to violate the statute relating to service, take an undue advantage of the defendants, and impose upon the court. It may be difficult to reconcile this case with Beebe v. Carter, 54 Kan. 261, but the latter case is distinguishable from the one now under consideration, for in that the amendment was allowed after a general appearance had been entered by the defendant constructively served, and one of the defendants had been personally served. In the present case, demands only personal in their nature were united with those wherein constructive service is allowable, and then such service was attempted as to the several incongruous claims; but the validity of the service having been attacked by motion, we cannot disregard the former as mere surplusage, because, on appearance of the defendants below, they could not answer to a part of the petition only, but must respond to everything contained therein ; and thus they would be forced to litigate personal claims as a penalty for appearing in this jurisdiction for the purpose of settling rights to property situated here. The judgment of the court below overruling the motion to set aside service will there fore be reversed, and the cause remanded for further proceedings not inconsistent with this opinion. It was unnecessary to bring the second case here, as everything essential to a consideration of the question involved was presented in the first case, and the second will therefore be dismissed. Allen, J., concurring. Johnston, J. : Two proceedings in error were submitted for a review of rulings made in the case in the district court — the first attacking the service as absolutely void, and the second attacking the validity of the, judgment rendered. As the principal relief demanded in the action was the recovery of real estate, and to exclude others from any interest in it, service by publication was authorized, and therefore cannot be said to be void. The affidavit and notice embraced all that is required for constructive service under section 72 of the code, and it will hardly do to say that the service was destroyed on account of redundancy in either the affidavit or publication. If the service was. irregular by reason of surplusage, it was cured by a subsequent general appearance of the defendant in the¡ case, when he came in and asked affirmative action of the trial court. More- than that, when a party ap-¡ pears after constructive service, and his appearance is-not induced by fraud of the plaintiff, he is in court for. all purposes and for every step that may be taken in the cáse. If causes of action are improperly joined in the petition, the code requires that a party must raise the objection by demurrer or answer; and if he does not do so by either method, he is deemed to waive the defect. Of course, if default is made upon service by publication only, no relief can be had ex cept such as is provided in section 72 of the cole. When he does appear, however, he is, in my opinion, entitled to the same rights and the same protection in conducting his share of the litigation as a resident of the state, and no more. When he comes in, he is permitted to set up a defense of an affirmative and transitory character, and why should the resident plaintiff be barred from the same privileges? Why should he be precluded from amending the petition and joining with his local action one of a transitory nature, which grew out of the same transaction, and which the code expressly provides may be united in a single proceeding? The policy of our code is against the splitting of a transaction into several lawsuits, and is in favor of uniting all consistent causes growing out of the same transaction, and disposing of them in a single case. There may be some lack of harmony in the decisions upon this question; but, after a careful consideration of the same, it was held, in Beebe v. Carter, 54 Kan. 261, that where service by publication is made upon a person who afterward makes a general appearance and files á pleading, it is competent for the court thereafter to allow the original petition to be amended so as to charge him personally, and to warrant the recovery of a personal judgment against him. In the case of Neal v. Reynolds, 38 Kan. 432, the amended pleading which was before the court was a substantial change of the claim or action of the plaintiff, and hence the court properly sustained the objection made against it. Some of the language of the commissioner who prepared the opinion tends to sustain the view of the plaintiffs in error in these cases; but that decision, as well as the language of the commissioner, was urged upon the attention of the court in Beebe v. Carter, supra, and we then held that, when a party is legally brought into a case by constructive service, he is subject to the same rules as one upon whom personal service has been had.	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The opinion of the court was delivered by Allen, J. : This was an action brought by the Missouri, Kansas & Texas Railway Company against Charles Haber and others to perpetually enjoin the collection of the judgment rendered by the district court of Lyon county in the action in which Plaber was plaintiff and the railway company and others were defendants, which this court has just affirmed. It was and is claimed that, before judgment was rendered against the railway company, a settlement was made between Hosier Bros, and Brogan & Sons on the one part, and the plaintiff and cross-petitioning defendants on the other; that satisfaction was made by Hosier Bros, for all the damages for whi^h they, Brogan & Sons, or the railway company were liable, and that the action being founded on a tort, settlement and satisfaction as to one also satisfies the claims as to all. The claim that a full settlement and satisfaction in accordance therewith of these claims was made before judgment was rendered against the railway company or before judgment was obtained against Hosier Bros, is not sustained by the evidence or the finding of the court. There were negotiations between the parties with reference to a settlement, but it does not appear that a full agreement was reached between the attorneys representing the claimants and PI osier Bros, until the judgment against them was finally entered, and even then there is evidence that as to some of the claimants the attorneys acted without express authority from their clients. It is certain that there was no payment made by Hosier Bros, until after judgment had been entered against them. The judgment against the railway company was rendered in December, 1893; that against Hosier Bros, at the May term, 1894. On the trial of the action as against the railway company, it was contended that a settlement had been effected, but the finding was against it. The case of Westbrook v. Mize, 35 Kan. 299, is cited, to the effect that where several persons commit an injury there can be but one satisfaction, and the acceptance of payment in full from one operates as a bar to all proceedings against the others. With the rule declared in that case we are entirely satisfied, but this case does not fall within it. On the other hand, the case of Meixell v. Kirkpatrick, 29 Kan. 679, is in point and decisive of the case. It was there held : ‘ ‘ Where an action sounding in tort against two parties is carried on to a judgment against both, each defendant becomes thereafter a joint debtor, within the scope of chapter 75, Compiled Laws of 1879, and the plaintiff may compromise and release his judgment against either without fully satisfying and discharging his claim against the other. The statute then under consideration is still in force, and authorized a compromise and discharge of Hosier Bros, from liability after judgment had been rendered both against them and the railway company ; and the fact that there were prior negotiations leading up to this arrangement does not impair its validity nor alter its effect. The railway company-cannot claim that it is injured by this arrangement. On the contrary, the judgment against it is satisfied pro tanto, and must be credited with the third of all the claims paid by Hosier Bros. The judgment is affirmed. All the Justices concurring.	[ -14, 102, -103, -3, -118, 104, 42, -38, 25, -94, 100, 83, -51, -51, 1, 119, 103, 125, -63, 107, 118, -77, 27, 99, -45, -45, -15, -60, -79, 75, 38, -42, 76, 48, 74, -43, -26, -54, -43, 28, -114, 4, -24, -64, -39, 0, 52, 120, 20, 71, 85, -114, -5, 42, 24, -57, 109, 61, -6, 61, -16, -16, -102, -59, 103, 2, -79, 36, -104, 3, 72, 62, -104, 53, 43, -24, 115, -90, -122, 116, 5, -87, 8, 102, 103, 33, 21, -17, -52, -72, 46, 126, -115, -90, -80, 24, -118, 75, -74, -103, -16, 23, -89, -2, -10, 13, 28, 40, -127, -113, -74, -106, -113, 102, 24, 7, -53, 37, 36, 100, -115, -78, 93, 71, 90, -101, -97, -68 ]
The opinion of the court was delivered by Johnston, J.: On April 1, 1887, H. S. Ingraham purchased from William Holmes about 100 acres of land situate near Kansas City for $32,500. He made a cash payment of about one-third of the purchase price, and for the balance due he executed two promissory notes, equal in amount, payable in one and two years after date, and as security for the payment he executed a mortgage upon the land which he had purchased. He immediately entered into the possession of the land, which has never been disturbed, nor has any one ever claimed an adverse title to the same. Default having been made in the payment of the notes, and Holmes having died, the executors of his will, on July 16, 1890, brought this action for the recovery of the indebtedness which was then due, and for the foreclosure of the mortgage. In his answer, Ingraham alleged that Holmes did not have a title to the land conveyed to him, that the title to the same was in some of the Shawnee tribe of Indians, and that, while Holmes represented that he had acquired the full legal title to the land, the conveyances and proceedings had were not sufficient to transfer the title to Holmes; and he therefore prayed for a rescission of the contract, and for damages to the amount of the purchase-money. In their reply, the plaintiffs below alleged that at the time of the conveyance Ingraham had full knowledge of all the facts in regard to the title to the property; that a complete abstract, showing the condition of the title, was delivered to Ingraham, who caused the same to be examined by his attorney, who approved the title. It was further alleged, that the only defect in the conveyances to Holmes was the failure to obtain the formal approval of the secretary of the interior to a conveyance of 40 acres, and that when it was learned that an objection was made to the deed for the want of such approval, the plaintiffs below applied to Ingraham, to whom the deed had been delivered, for the same, in order that they might obtain the formal approval of the secretary, and in that way cure the defect, but that Ingraham refused to deliver the deed to the plaintiffs below for that purpose, and that, solely by reason of such refusal, the plaintiffs were prevented from procuring the approval and curing the defect. Á trial of the issues resulted in favor of the plaintiffs below, and a judgment was rendered against Ingraham foi* the amount of the debt and for a foreclosure of the mortgage. It appears that the land in question is a piart of that allotted to Captain Parks, a Shawnee Indian, under the treaty with the Shawnees of May 10, 1854. Article '9 of the treaty provided for ‘‘issuing to such of the' Shawnees as may make separate selections patents for the same, with such guards and restrictions as may seem advisable for their protection therein.” (10 U. S. Stat. at Large, 1057.) ■ In an act approved March 3, 1859, congress enacted a provision authorizing the issuance of patents to Indians entitled to separate selections of land, and to their heirs, upon such conditions and - limitations and under such guards and restrictions as may be prescribed by the secretary of the interior. (11 U. S. Stat. at Large, 431.) In the patents issued there was a stipulation that the land conveyed ‘ ‘ shall never be sold or conveyed by the grantee or his heirs without the consent of the secretary of the interior for the time being.” Although Captain Parks was a member of the Shawnee tribe of Indians, he -was not a full-blood, and is spoken of by the witnesses as being ‘ ‘ more of a white man than an Indian.” He had two children, Sally and Mary. Mary married a white man named Donaldson, and she died, leaving two children, Catharine and Eebecca. In 1859, Captain Parks died, leaving as his heirs his daughter Sally, who had intermarried with one Eogers, and his two granddaughters, Catharine Donaldson and Eebecca Donaldson. Catharine married John Swartzel, a white man, and Eebecca married a white man named Vogel, and upon his death she afterward married one Joseph Fitzpatrick. After the death of Captain Parks, and in 1865, a partition suit was instituted in the district court of Wyandotte county, and one-half of the Parks land was set apart to Sally, and the other half to Catharine and Eebecca. The judgment determining their rights and partitioning the property was affirmed in this court. ( Swartzel v. Rogers, 3 Kan. 374.) After the partition was made, Sally Eogers sold and conveyed the portion set apart to her to Catharine and Eebecca, who paid her full value for the same, and the deed of conveyance was approved by the secretary of the interior. In 1868, by mutual agreement between Catharine and Rebecca, a partition of the land which they held in common was made ; and after Rebecca had died a partition proceeding was had between Catharine Swar.tzel and the heirs of Rebecca, in the district court of Wyandotte county, in which the division theretofore made by mutual agreement was confirmed. Subsequently, and in 1879, a division was made by the Shawnee council, and a deed was made conveying the share set apart to Catharine, and the deed which recited the partition and was based thereon was approved by the secretary of the interior. In January, 1879, Catharine Swartzel conveyed about 60 of the 100 acres in question to William Holmes, and this deed was presented to and approved by the secretary of the interior. On November 29, 1881, Catharine Swartzel executed a conveyance to William Holmes, conveying to him 40 of the 100 acres in question, but this deed was not presented to nor approved by the secretary of the interior. Ingraham claims that the lack of such approval is a fatal defect in the title, and he also insists that the partition proceedings and other steps taken to transfer the title to the land in question to Catherine Swartzel were insufficient. Ingraham, as we have seen, acquired the land in 1887 ; but he made no objection to the kind of title which he received until 1890, when there was a great shrinkage in the value of land, nor until steps had been taken to enforce the collection from him of the balance of the purchase-money. He has had undisputed possession of the land since the purchase, and there has been no assertion of a hostile title to it. No claim has been made by any of the heirs of Captain Parks, nor by any of their grantees, and the only one to question the sufficiency of the title is Ingraham himself.. When he purchased the land, an abstract of the title was furnished to him, and the purchase was not completed until his attorneys had examined the abstract and title papers and reported that Holmes had a good title. The facts bearing upon the condition of the title were as well known to him as to Holmes, and if the failure to obtain the approval of the secretary of the interior to one of the Holmes deeds is a defect,- he had full knowledge of the same. Holmes appears to have acted openly and in good faith in the transaction; and that the complete title was in his grantor, Catharine Swartzel, is well established. The attack made upon the partition proceedings cannot be sustained. The state courts were open to the Indians for the division of their property, and their right to resort to these tribunals for adjustment of their rights has been frequently recognized. (Blue Jacket v. Comm’rs of Johnson Co., 3 Kan. 299; Swartzel v. Rogers, 3 id. 374; Wiley v. Keokuk, 6 id. 94; Felix v. Patrick, 36 Fed. Rep. 457; Felix v. Patrick, 145 U. S. 332.) The partition proceedings were also recognized by the federal authorities, and deeds based upon the division of property so made were approved by the secretary of the interior. Catharine Swartzel in this way received by approved deeds the share of Sally Rogers, which was one-half of the Parks land, and also the share of her sister, Rebecca, which was one-fourth of the land. The remaining one-fourth interest she inherited from her grandfather. The deeds to Catharine Swartzel contained 110 restrictions, and, being absolute in form, the approved deed conveyed to her an absolute title. As to the interest purchased from her coheirs, she is to be regarded the same as any other purchaser, and the approved conveyance divested the title of the United States and placed the interest named outside of the restrictions upon the sale of Indian lands. Some of the steps preliminary to the transfers do not conform strictly with the rules which had been promulgated by the secretary of the interior, but, as that officer has actually approved the conveyances, the departure from the prescribed rules becomes unimportant. The treaty leaves the matter of restrictions upon alienation of these lands with congress, and congress, in turn, has left it wholly with the secretary of the interior. Neither the treaty nor the act of congress expressly provides any conditions or limitations, restrictions or guards, and hence the ma>Hfer of consent and approval rested in the discretion and power of the secretary. He could modify his own rules, .or dispense with them entirely, as the circumstances of the case seemed to warrant; and when he acts and approves, the transfer is complete and the conveyance valid. It follows, therefore, that the three-fourths interest of Captain Parks and his .heirs had been completely transferred to Catharine Swartzel, and as to the 60-acre tract, the deed of which to Holmes was approved by the secretary, there can be no objection to the title. The Holmes deed to the 40-acre tract was not approved, and as to the three-fourths interest in the same which she had purchased from her coheirs, and which had been approved by the secretary, no approval was necessary. The Indian title to the extent of the three-fourths interest had been extinguished by the approved conveyance. It is earnestly insisted on the. part of the defendants in error that no approval was necessary as to the one-fourth interest in the 40 acres covered by the unap-' proved deed. It is contended that the treaty provisions with reference to restrictions only extend to the particular Shawnee who makes selection, and can have no application to the heirs of the allottee, and that any extension of the protection beyond the allottee, or the placing of any limitations upon a transfer by heirs of the allottee,' are inconsistent with the treaty, and therefore invalid. It is further contended that it can have no application in the present case, because Catharine Swartzel, from whom Holmes purchased, was not a member of the Shawnee tribe of Indians, and that long before the transfer of the land she had abandoned all tribal relations with them. She was not the allot-tee, nor the child or direct heir of the allottee. Her grandfather was only a half-breed Indian. Her father was a white man, and she married a white man and lived apart from the Indians, and never afterward rejoined them. It appears that the greater part of the tribe moved from Kansas, and located in the Indian territory, about 1872. In pursuance of the treaty of July 19,1866, an agreement was entered into between the Shawnees and the Cherokee nation, by which the Shawnees, upon certain terms and conditions, were incorporated into the Cherokee tribe, and forever after are to remain a part of the Cherokee nation, on equal terms in every respect and with all the privileges and immunities of native citizens of the Cherokee nation. By that agreement, it was provided that the Shawnees were to abandon their tribal organization, and the agent of the Cherokees was to act for the Shawnees. It is claimed, however, that for some purpose the United States authorities recognize the existence of a tribal organization, and therefore that it cannot be said that the tribal organization has been completely dissolved. (Brown v. Steele, 23 Kan. 672; United States v. Black-Feather, 15 Sup. Ct. Rep. 63.) These questions do not require a determination at this time, because, even if an approval of the last deed is necessary, Ingraham is not entitled to the equitable relief which he seeks. He . . , not bring an action on the covenants of his deed when he discovered the absence of an approval, but remained silent until the action to recover the purchase-money was brought. The sale was executed, and he has accepted and enjoyed possession under the conveyance which was made to him. There was no misrepresentation or fraud on the part of his grantor, and if there is any defect in the title his possession has never been disturbed, and no one has laid claim to any interest in the land. If there is any want of title, it is a mere breach of the covenants of seizin, and as he has never been disturbed in Ms occupancy or seizin, the breach is but technical, and only nominal damages could be recovered. In Hacker v. Blake, 17 Ind. 97, it was said that “the entire want of title was a breach of the covenants of seizin, but for such breach, while the purchaser retains possession, he can recover only nominal damages, and for such damages a judgment will not be reversed.” See, also, Black v. Thompson, 36 N. E. Rep. (Ind.) 644, and cases cited. An action has not been brought on the covenants, but Ingraham is resisting payment,of the purchase-money and asking for a rescission of the contract. When the plaintiffs below learned of In-graham’s objection to the title, they dismissed the action first brought, and applied to' him for the unapproved deed, for the purpose of presenting it to the secretary of the interior for Ms approval. He had possession of that deed and understood the purpose for which, the application was made, but he refused to give them an opportunity to obtain the approval and cure the defect. Failing to obtain the original, the plaintiffs below sought to obtain the approval of a copy of the deed, but the officers of the interior department declined to act upon a copy while the original was in existence. The plaintiffs below had a right to perfect the title to the land at any time before the question of rescission was determined. Ingraham was asking equitable relief, and yet, instead of doing equity, he sought, by his refusal, to prevent the cure of the defect and the completion of the title. If he had allowed the deed to have been approved it would have related back to the execution of the deed and validated it from that time. (Pickering v. Lomax, 145 U. S. 310.) The judgment of the district court will be affirmed. All the Justices concurring.	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The opinion of the court was delivered by Johnston, J. : Albert A. Woods brought an aption against the Western Union Telegraph Companj^/to recover damages alleged to have been sustained through the negligence of the company in failing to deliver a telegraphic message. Woods had been feeding cattle for the market in Cowley county, Kansas, which he had previously purchased through the commission firm of D. L. Jones & Bro., at the Kansas City stockyards. In the latter part of July, 1890, he decided that 178 head of the steers were about ready for the market, and, meeting a young man who was engaged in business at the stock-yards in Kansas City, he informed him of his purpose to ship the cattle to the mai’ket on July 31, 1890. Upon reaching Kansas City the young man ixotified D,. L. Jones & Bro. of the pui'pose of Woods. At 8 : 55 a. m., July 31, 1890, the comxnissioix merchants filed with the Western Union Telegraph Company, at its office at the stock-yards at Kansas City, a telegram, as follows : “July 31, 1890. — A. A. Woods, Burden, Kan.: Heavy receipts of cattle and hogs here and above. Max’ket bad. Would advise you not to ship this week. D. L. Jones & Bro.” The telegram was sexxt to the main office at Kaxxsas City at 9 :16 a. m., axid was forwarded from there to ■Burden, Kaxx., at 3 : 32 p. m. of the same day. Thex-e were two Western Uxxion wires extending from Kansas City through the Burden office, hut there was an interruption of business on both of the wires on the morning of that day by reason of the breaking of the circuit. The delay on one was about 15 minutes, and about 45 minutes on the other. It appears that several attempts were made to call up the operator at the Burden office between noon and 3:32 p. m., but although present in the office he did not answer the calls. After he did receive the dispatch, it was retained in the office, and was not delivered to Woods or to any One for him. Woods left Burden on the 30th and went to Grand Summit, from which point the cattle were to be shipped. He had ordered cars to be set out at that station, and the order was made through the agent at Burden, who was also the agent of the telegraph company. The cattle were loaded on the cars on the evening of July 31, and Woods left the station with his train at 5 :15 p. m., arriving at Kansas City on the following morning. He committed his cattle to D. L. Jones & Bro., who made diligent but fruitless efforts to sell them, and although the cattle remained in the stock-yards at Kansas City until the evening of August 2, no offer was received for them. There had been unusually heavy receipts, and for that reason there was no demand for the class of cattle which Woods had shipped. It was then determined best to reload the cattle and ship them to Chicago, where they arrived on August'4. There the market was in a demoralized condition, but they were sold on the public market at 2 o’clock in the afternoon of that day for $5,106.92, which, after deducting the expenses, left a net sum of $4,509.92. Proof was offered tending to show that on the day of shipment at Grand Summit the cattle were worth $6,408, and upon the trial the jury found that Woods suffered an actual loss of $2,014.91, for which the telegraph company was liable. Complaint is made of rulings upon the admission of testimony, and it is urged that the evidence and findings do not justify the verdict and judgment. The testimony abundantly shows that the telegraph company was negligent in the performance of its duty. There was unnecessary delay and negligence in the transmission of the dispatch from the Kansas City office, and that the agent at Burden wap negligent is well established. The terms of the message indicated that it related to an important business transaction which required prompt transmission and delivery. It was held for several hours in Kansas City without even an effort to send it, and finally when it was transmitted to Burden the agent there failed to exercise any diligence in delivering it. He knew that Woods was about to start to the market with his cattle and yet neglected the message which advised him not to do so. Woods was engaged in the mercantile business at Burden, and his store was only a short distance from the office of the telegraph company. It was in charge of his wife and a clerk, and the agent had previously transacted business with them. The dispatch could have been delivered at the store in five minutes after it was received, and could have been delivered at the residence of Woods within seven minutes. If it had been delivered there, sufficient time remained to have taken the message to Grand Summit before the shipment of the cattle was made. It is true the Burden agent states that he attempted to wire the message to Grand Summit, but as the wire was then in use he was unable to do so. It is stated that as the wire belonged to the railroad company the telegraph company could not use it except when it was free from business of the railway company. However that may be, it is clear that the telegraph company did not exercise diligence in the attempt to deliver the message. It was addressed to Woods at Burden. His residence and place of business were there, and being unable to make a personal delivery at that place, it was the duty of the company to deliver it to his wife or to his clerk at the store or to members of his family at his residence. If delivery had been made at either of these places, the agents of Woods would have had time and opportunity to have sent the message to him at Grand Summit, and thus have averted the loss which followed. (Given v. W. U. Tel. Co., 24 Fed. Rep. 119 ; Telegraph Co. v. Trissal, 98 Ind. 566 ; Thomp. Electr. § 289 ; 25 Am. & Eng. Encyc. of Law, 781.) It was, therefore, proper to show the proximity of the place of business and residence of Woods to the telegraph office in Burden, and also that if the message had been delivered at either of these places with reasonable diligence it could have been transmitted to Grand Summit before the cattle were shipped. Although several objections were made, we find that no material errors were committed in the admission of this class of testimony. Objection is made to the instructions with respect to the measure of damages. The court advised the jury that in case they found that Woods was entitled to recover, the measure of damages would be the difference between the fair market value of the steers at Grand Summit on July 31, 1890, and the value of them in Kansas City, together with the cost of transportation and other necessary expenses; but if the jury were satisfied that after Woods arrived in Kansas City and had offered them for sale in the market of that place, and after diligent and reasonable effort to sell them he was unable to sell or obtain an offer for them, and that thereupon Woods, acting in good faith and in the exercise of reasonably good judgment, shipped them to Chicago, and there sold them for a reasonable and fair price in the usual cattle market of that city, he would be entitled to recover the difference between the fair market value of the cattle at Grand Summit and the market value of the cattle in Chicago, together with the necessary cost of/shipment, maintenance, and sale. We think the 'correct measure of damages was applied. The cattle were at Grand Summit and would have remained there if the dispatch had been properly delivered. It was shown that they had a market value at that place.’ Through the negligence of the company they were shipped upon a glutted and demoralized market. At Kansas City and upon the open market no sale could be made nor even an offer obtained for them. The duty then devolved upon Woods to make the best possible disposition of them, so as to reduce the loss as far as possible. They were then taken to Chicago, one of the largest markets in the country, and were sold there in the usual and ordinary way. The difference, then, between the value of the cattle at home and the net receipts for the cattle on the Chicago market, after paying the necessary expenses of shipment, care, and sale, is a fair measure of the loss sustained by Woods, and involves no remote or speculative elements. In a somewhat similar case, where a telegraph company failed to deliver a telegram to a cattle shipper notifying him not to ship cattle to a certain market, it was ruled that “the measure of damages is the difference between the value of the cattle at the place of shipment and what they were sold for at the place of des tination, together with the cost of freight and their keeping until sold.” (W. U. Tel. Co. v. Linney, 28 S. W. Rep. 234.) The question of whether Woods acted in good faith and with reasonable judgment in shipping them to Chicago, and whether he used reasonable care and judgment in obtaining the best possible price for them on that market, was properly submitted to the jury and determined in his favor. Some criticism was made to a part of an instruction which required the j ury to find the difference between the market value of the cattle at Grand Summit and in Chicago on the same day, to wit, July 31, 1890, and it is said that there is no testimony to show what the market value of the cattle was in Chicago on that day. The whole of the charge, taken together, indicated clearly enough to the jury that they were to find the value of the cattle upon their arrival at the Chicago market instead of the day on which they started for that market. It is claimed that no market value in Chicago for cattle like Woods’s was shown by the testimony. It is probably impracticable and impossible to show abstractly a fixed market value for cattle of every grade and condition that go into the market. Their value does not depend alone upon their age and breed, but is affected as well by their condition at the time they are offered. These cattle were exposed for sale on one of the. largest cattle markets of the world, in the usual and ordinary way, and we think the telegraph company has no reason to complain with respect to the manner of sale or the price at which they were sold. We find no objection to the charge of the court, nor any error in the remarks made by the court during the course of the trial. The language of the message was plain ; its importance was obvious ; the charge for transmission and delivery had been paid ; it had been sent for the benefit of Woods, and he is entitled to recover the direct damages resulting to him from the negligent failure of the telegraph company to transmit and deliver it. The finding of negligence is well sustained by the testimony, and the amount awarded by the jury was measured by a just and proper /rule. Judgment affirmed. All the Justices concurring.	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The opinion of the court was delivered by- Martin, C. J.: I. James Conway and Joseph Monroe were jointly charged with the offenses of burglary and larceny. Conway was tried separately, and Monroe was a witness in his behalf. Conway was convicted, and he appealed to this court. Monroe entered a plea of guilty, and was sentenced to imprisonment in the penitentiary for the terms of five years and one year, respectively. Conway was awarded a new trial. (55 Kan. 323.) He was tried a second time, at September term, 1895, and again convicted, and he was sentenced to confinement and hard labor in the penitentiary for the term of five years for burglary in the second degree, and for the term of one year for the crime of larceny, and he again appeals to this court. The testimony of Monroe at the former trial was offered in evidence, the same being identified and transcribed by the official stenographer, who was called as a witness, but it was excluded, on the objection of the state, for incompetency. It was admitted that Monroe was then in the penitentiary under said sentence. It is contended by counsel for defendant that Monroe is civilly dead, and that his testimony taken on the former trial is therefore admissible. It is true that the evidence of a deceased witness on a former trial is admissible both in civil and criminal cases, (Gannon v. Stevens, 13 Kan. 447, 459 ; Solomon Rld. Co. v. Jones, 34 id. 443, 458 ; The State v. Wilson, 24 id. 189, 195,) but Monroe was not dead either naturally or civilly. When a person is under sentence of imprisonment for life he is deemed civilly dead, and his estate, property and effects are to be administered and disposed of in all respects as if he were naturally dead. (Gen. Stat. 1889, ¶“¶ 2574, 5399.) But such is not the effect of a sentence for a term of years. If Monroe's deposition had been taken at the penitentiary, or he had been brought by the warden into court, his testimony could not have been received, over the objection of the attorney’for the state. (The State v. Howard, 19 Kan. 507.) II. The defendant requested the court to instruct the jury that .the possession of stolen property shortly after the burglary was not evidence of the commission of burglary. This was refused, and the court gave the following instruction : ‘ ‘ The possession of stolen property recently after it is stolen is prima facie evidence of .guilt, and .throws upon the possessor the burden of explaining such possession.” The possession of stolen property may, under certain circumstances, be evidence tending to show the commission of a recent burglary ; as, if goods are placed in a building well secured in the night-time, and early the next morning they are found in the possession of one who has no right to them, this recent • possession might tend to show that the possessor had not only stolen the goods, but had broken into the building to obtain them. The instruction requested was therefore erroneous. It would generally be error in the opposite direction, however, to declare that the recent possession of goods stolen out of a building is evidence of burglary as well as larceny, and the instruction of the court should have been modified so as to state that the possession of stolen property recently after the theft is prima facie evidence of guilt of larceny. . But the court very fully and fairly instructed the jury as to the law of burglary and larceny, and the instruction as to the possession of stolen property was evidently intended by the court, and understood by the jury, to have reference only to the offense of larceny, and the failure to modify the instruction as above indicated cannot be regarded as prejudiced error. III. Evidence was offered on the part of the defendant for the purpose of proving an alibi, and the court said to the jury : “On that subject you are instructed that the defendant is not required to prove this defense beyond a reasonable doubt, or even by a preponderance of the testimony, but the state must prove to your satisfaction beyond a reasonable doubt that he was present and participated in the alleged crime, if such crime was committed; and, unless the state has done this, the defendant should be acquitted, unless you should find from the evidence beyond a reasonable doubt, under the next instruction to be given you, that the defendant is guilty.” Counsel for the defendant insist that this instruction was erroneous, and implied that the defendant was bound to do something more than stand upon the presumption of innocence throughout the trial, and therefore inconsistent with the declaration of this court when the case was here before (55 Kan. 323) ; but the court below very fully instructed the jury upon the presumption of innocence in favor of the defendant, and we see nothing inconsistent therewith in the foregoing instruction. The judgment of the court must be affirmed. All the Justices concurring.	[ 112, 104, -3, -66, 24, 64, 58, -8, 98, -93, 32, 114, 105, 87, 5, 105, 51, -3, 84, -87, 76, -73, 55, 65, -41, -13, -5, -44, -77, 125, -27, -1, 12, 48, -54, -39, -26, -52, -63, -42, -114, 3, -104, -1, 86, 80, 48, 97, 86, 30, -15, -98, -29, 42, 27, -50, 105, 40, 73, 47, 48, -79, 46, -115, -21, 20, -78, 38, -102, -95, 48, 4, -104, 17, -128, -4, 115, -74, -122, -44, 111, -85, 13, 98, 99, 1, 85, -21, -96, -55, 14, -34, -115, -89, -104, 81, 72, 68, -97, -35, 63, -48, 38, 122, -9, -44, -107, 108, 43, -113, -106, -79, 99, 122, -110, -14, -61, 35, -80, 97, -116, -22, 73, 54, 113, -101, -114, -109 ]
The opinion of the court was delivered by Allen, J. : The sole question presented by the record in this case is whether, in the classification of demands against the estate of a deceased person, the wages of a clerk employed by the decedent in his store for a period prior to his last illness are to be included, under the provisions of section 80, chapter 37, of the General Statutes of 1889, in the second class. The first part of the section reads as follows : “All demands against the estate of any deceased person shall be divided into the following classes: First, funeral expenses; second, expenses of the last sickness, wages of servants, and demands for medicines and medical attendance during the last sickness of the deceased, and the expenses of administration.” Is a clerk a servant within the meaning of this language, and, if so, are the wages confined to those accruing during the last illness of the deceased? No direct authority is cited or known to us on the question. The legislature in more than one enactment has manifested a purpose to secure to all wage-earners their hire, and to prefer their claims to those of most other creditors. It is conceded that the term "servant ” in its usual acceptation, especially in the law, is broad enough to include a clerk; but it is argued that the word is here used in a restricted sense, and means only menial or household servants. We are loth to recognize any such classification in Kansas as menial servants. The word is broad enough to include a clerk, and we think the legislature intended it should do so. Nor do we think the wages referred to are limited to those earned during the last illness of the deceased. In this particular case the amount of wages conceded to be dxie is unusually large, but that fact cannot affect the general rule. Though the language used might perhaps be held to restrict the time to the period of the last sickness, we think it as capable of the other construction, and that the legislature intended'to classify all wages of servants ahead of debts due the state, judgments, and demands of the fifth class. The judgment of the district court will be modified by classifying the demand allowed the plaintiffs in the second class, instead of the fifth. Judgment will be entered in this court in favor of the plaintiffs in error for costs. All the Justices concurring.	[ -46, 110, -100, 125, 10, 98, 3, -102, 81, -95, 37, 83, 109, -45, 21, 105, -13, 13, 81, 107, -27, -89, 7, -21, 18, -5, -31, -43, -71, 95, -90, -2, 77, 48, 10, -43, 102, -62, 65, -44, -114, 8, 9, -31, 121, 0, 52, 104, -10, 91, 113, 95, -77, 40, 25, -57, 40, 46, 88, 35, -48, -78, -118, -115, 126, 29, -126, 37, -100, -113, -56, 14, -98, 17, -128, -20, 51, -90, -122, 92, 47, -71, 9, 98, 98, 50, -123, -19, -24, -104, 46, -46, -99, -89, -106, 88, -86, -120, -106, -99, 124, 20, 15, 124, -10, 21, 31, 108, 11, -113, -10, -77, 15, 54, -100, -117, -22, 101, 17, 113, -100, -94, 92, 71, 114, -109, -113, -100 ]
The opinion of the court was delivered by Johnston, J. : The principal contention is that neither the petition nor the testimony offered in behalf of Botsford and Smith justifies a recovery. In the latter part of December, 1886, C. E. Squires, the authorized agent of the paving company, employed Botsford, an attorney at law, to represent the company at Atchison, and he continued in the service of the company until March, 1887, when Smith joined him in the work. Soon afterward a definite contract was made between them and the company, as shown by the letters of proposal and acceptance heretofore stated. In pursuance of his employment, Botsford investigated the statutes of the state with reference to grading and paving streets in cities of the first class, as well as the ordinances of the city of Atchison concerning the same subject. Shortly afterward changes were made in the statute, as well as in the ordinances, and he gave advice to the company in regard to the condition of the law and the steps necessary to be taken in the premises. The testimony is that, when first employed, Botsford and Smith studied the character of asphaltum, and acquainted themselves with the relative merits of the different kinds of paving proposed to be used in Atchison. They secured and distributed literature advocating the advantages of asphaltum over other paving materials. Under the law, the grading and paving of streets rested largely ^vith the property owners whose property would be assessed to pay for the same. They explained the merits of the paving to the several owners, and endeavored to secure their consent that asphaltum should be used. Public meetings of the property owners on several of the streets were held, and an effort was made to convince them that for cleanliness, durability, etc., asphaltum was for the best interests of the property owners and the public. They procured the signing of petitions by property owners, requesting the mayor and council to have the streets graded and paved, and they also presented the advantages of asphaltum to the members of the council. A number of the councilmen and of citizens were taken by them to Omaha to examine the asphaltum pavement in that city. At the end of several months, and through their efforts, they procured the consent of substantially all the property owners on Kansas avenue to pave it with asphaltum at the rate of $2.80 per square yard. They also procured a change of grade upon a portion of that street in order that asphaltum might be used. A meeting of the mayor and council of the city was held on June 6, which was attended by property owners and others, and when the question was to be finally decided. C. E.-Squires, the managing agent of the company, was present at the meeting, and made a bid for the work. When it was opened, it was found to be $3 per square yard instead of $2.80, the price as understood by the plaintiffs below, the property owners, and the officers of the city. The bid caused both surprise and indignation among the property owners, and within a few days they resolved to use other material. It appears that the mayor and council left the choice of the kind of paving largely to the property owners, and were ready to carry out their wishes, and to contract with the company for asphalt pavement at the agreed price of $2.80 per yard. It is conceded that the pi’ice named was the usual one, but the company insisted that the extra charge was made because of extra grading which was necessary to prepare the street for the pavement, and that all concerned were aware that an extra charge would be made if extra grading was to be done. This was denied, and upon this matter of dispute the opinion of the jury has been taken, and it is against the company. It is contended that the agreement alleged and proven was contrary to public policy, and void. An examination of the terms of the agreement does not indicate that any corrupt or improper influences were to be used, nor that the plaintiffs below agreed or were expected to use any secret or sinister means to effect the object of their employment. It is true that the compensation was a contingent one, but under the rule which obtains in this state the mere fact that the compensation is contingent will not render the agreement invalid nor bring the parties within the condemnation of the law. (Aultman v. Waddle, 40 Kan. 195.) Attention is called to the provision in the letter of acceptance where the plaintiffs below state that they are not to reimburse the company “for moneys expended for advertising or otherwise prior to securing work,” étc., and it is contended that the words “or otherwise” refer to some illegitimate means. We cannot assume that parties were contemplating corrupt and underhanded practices, nor presume that a contract is illegal. To accomplish the work in which they were engaged money could be legally expended and honest means employed. In K. P. Rly. Co. v. McCoy, 8 Kan. 538, it was held that “money may be used properly and improperly to influence legislation. It is used properly in paying for the distribution of circulars or pamphlets, or otherwise for the collection or distribution of information openly and publicly among members.” In McBratney v. Chandler, 22 Kan. 692, it was held that a contract with an ^attorney for services to be rendered before a court, department of the government or a legislative body is valid, and upon the performance of the services a recovery can be had; while on the other hand it is said that the employment of a person as a mere lobbyist, in the sense in which that term is used, is forbidden by public policy, and no recovery can be had for such services. It is stated that “There is no presumption that a contract is illegal. He who denies his liability under a contract which he admits having made must make the fact of its illegality apparent. The burden of showing it wrong is upon him who seeks to deny his obligation thereon. The presumption is in favor of innocence, and the taint of wrong is matter of defense.” According to the testimony of the plaintiffs below, they acted openly and honestly in presenting the merits of the asphaltum pavement, and the advantages that would result from its use. Aside from the legal advice and assistance rendered by them, their work was largely with the property owners, who were to pay the greater part of the expense of the pavement. It does not appear that they were employed by reason of any personal or political influence which they could exert, and that they acted for the paving company was well understood by all. The action to be taken by the mayor and council depended to a great extent upon the consent and action of the owners of the property fronting ozz the street to be improved. (Laws 1887, ch. 99, §§4, 5.) It was competent for the company to employ attorneys azzd agents collect and present the facts with reference to asphaltum to the property owners, make arguments, and to openly and honestly endeavor to cozivince the z-easozz and judgment of the property owners and the couizcil that the interests of the owners and the public would be best sub-served by the zzse of asphaltum pavement. As the cost of the pavement was to be borne by the property owners, they had a right to request and insist that the council should use the pavement of their choice, and the plaintiffs below, in assisting them to fairly bring the matter to the attention of the council, can hardly be held guilty of wroizg. It is shown beyond doubt that the znayor and city council were entirely willing to accede to the wishes of the property owners, and to pave the street with asphaltum izz accordance with their request. If the plaintiffs below had concealed the capacity in which they were actizzg, and had performed purely lobbyizzg services, then it would be clear, as the numerous authorities cited by plaintiffs in error show, that no recovery cozzld be had. It was shown, however, that they appeaz'ed in their true character, azzd their representations and arguments were openly and cazzdidly made. It was not shown that any secret or sinister influences were exerted, nor that any improper means were employed. In addition to the authorities cited, see Foltz v. Cogswell, 86 Cal. 542 ; Chesebrough v. Conover, 140 N. Y. 382 ; Powers v. Skinner, 34 Vt. 274 ; Miles v. Thorne, 38 Cal. 335 ; Denison v. Crawford, Co., 48 Iowa, 211. We think the testimony was sufficient to show that the compensation specified liad been earned by the plaintiffs below, and that they cannot be defeated from recovering that compensation on account of the fault or neglect of the company to carry out its agreement with the plaintiffs below and their promises to the property owners. Testimony offered for the purpose of showing improper and immoral acts by plaintiffs below in carrying out the agreement with the company was excluded by the court, as not being within the issues of the case. The answer of the defendants below was a general denial only. Under the general denial, the plaintiffs below were bound to prove the contract entered into by the defendants, and that the services were rendered. The illegality of the contract or of improper and immoral practices by the plaintiffs below, which would render it void, is an affirmative defense, which should be distinctly pleaded in order to be available. The general denial puts the plaintiffs upon proof of their cause of action, but does not allow any new matter constituting a defense to be proved. (Civil Code, §94; Perkins v. Ermel, 2 Kan. 325 ; Stevens v. Thompson, 5 id. 305 ; Clark v. Spencer, 14 id. 398 ; St. L. Ft. S. & W. Rld. Co. v. Grove, 39 id. 731.) It has been held that, where fraud and illegality are relied on as grounds to'avoid a contract, the specific facts constituting the fraud and illegality must be set forth. “A mere general averment of fraud and illegality, without stating the facts on ■which the charge is based, presents no issue, and no proof is admissible thereunder.” (The State, ex rel., v. Williams, 39 Kan. 517.) See, also, K. P. & W. Rld. Co. v. Quinn, 45 Kan. 477. If the plaintiffs below, in making their proof, had developed the illegality of the contract, as was done in the case of Sheldon v. Pruess ner, 52 Kan. 579, they would not have been entitled to a recovery; but the rule of that case cannot apply where it is not alleged in the pleadings nor shown by the evidence of the party seeking to recover. To avail themselves of facts not appearing on the face of the contract to establish that it is unlawful and corrupt, and therefore against public policy, they must be affirmatively pleaded as a defense. (Milbank v. Jones, 127 N. Y. 370; Musser v. Adler, 86 Mo. 445; Mathews v. Leaman, 24 Ohio St. 615 ; Sharon v. Sharon, 68 Cal. 29 ; Buchtel v. Evans, 21 Ore. 315 ; Bliss, Code Pl., 3d ed., 352-363.) Although the ruling excluding testimony of this character was made at the opening of the defense, no application was made to amend nor to enlarge.the answer. If there was anything improper or corrupt in the matter, the defendants below must necessarily have participated in it; but a charge so serious as that should have been clearly and distinctly stated and an intelligent issue made thereon. For some reason they were unwilling to set up such a defense in a pleading, or to place such a charge upon the record. If application had been made, undoubtedly an amendment would have been allowed, and such proof as they had would have been received. In several respects there is a sharp conflict in the testimony, but this has been settled by a verdict of the jury, which the trial court has approved, and the dispute as to the facts is thereby ended. No error was committed in refusing the instructions requested by the company, nor do we find anything substantial in the objections made to those that were given. The judgment of the district court will be affirmed. Allen, J., concurring. Martin, C. J., having been of counsel, did not sit in the case.	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The opinion of the court was delivered by Allen, J. : The position taken by counsel for plaintiff in error is, that the validity of the mortgage to J. W. Rankin was fully established, and was assumed by the court in the instructions to the jury, and this being so, the right of the mortgagee to hold possession of the goods himself, or to transfer them to whomsoever he pleased and for whatsoever consideration, was absolute, and could not be challenged on the ground of fraud by the creditors of Rankin Bros. ; that, as against the mortgagee, Rankin Bros, had no attachable interest in the property, and that their creditors had no standing for an attack on the validity of any transfer of the property the mortgagee might see fit 'to make. In support of this position, author-, ities are cited to the effect that the mortgagee of chattels has the legal title thereto, and, after condition broken, may maintain an action to recover the possession thereof against an officer holding writs of attachment or execution against the mortgagor. (Ament v. Greer, 37 Kan. 648 ; Jones, Cli. Mortg. § 1.) It is insisted that under any view of the evidence in this case the plaintiff had succeeded to all the rights of the mortgagee, that he was in possession of the property, and that the defendant therefore could not acquire any right' to the possession of the property by virtue of writs against Rankin Bros., the mortgagors. It is also contended that the judgment in the former case, between J. W. Rankin and the defendant Bell, was an adjudication between the parties affirming the validity of Rankin’s mortgage ; that the plaintiff is a privy of Rankin, and that the defendant cannot, in this action, question the validity of the mortgage ; that the validity of the mortgage being established, the law does not permit an inquiry into the good faith of the mortgagee in dealing with the mortgaged property. There is much plausibility in the argument, but it is not sound. Although the legal title to mortgaged chattels and the right of possession after condition broken vest in the mortgagee, that title is not a full and absolute title, but is still subject to the equirable rights of the mort•gagor, and whatever surplus remains ' of the mortgaged chattels after satisfaction of the debt is an asset of the mortgagor to which his creditors have a right to look for the satisfaction of their claims. A fraud may be committed by the parties to the mortgage and a purchaser buying from the mortgagee, as against creditors of the mortgagor. If it were not so, a mortgage for a trifling sum on a large stock of goods might be used as a means for perpetrating the grossest kind of a fraud on creditors. Although the precise question now presented has not been heretofore decided by this court, we think the principle has been clearly recognized in several cases. In Wygal v. Bigelow, 42 Kan. 477, it was held that a mortgagee of chattels might become a purchaser at a sale under the mortgage, but that in making the sale he must act fairly and in good faith, and that a fraudulent sale would not extinguish the mortgagor’s right, but would render the mortgagee, if he afterward converted the property to his own use, liable to account to the mortgagor for the full value of the mortgaged property. It was said in the opinion : 1 ‘ The mortgagee has no right by any unfairness to sacrifice the property and deprive the mortgagor of the surplus over the debt which by a fair and honestly-conducted sale might arise. . . . The defendants were entitled to have a fair and bona fide sale.” See, also, Jones v. Franks, 33 Kan. 497; Denny v. Van Dusen, 27 id. 437. The stock of goods claimed by the plaintiff consisted of a great many articles, and might have been sold either piece by piece or in separate lots. The value as claimed by the plaintiff largely exceeds the amount of the mortgage debt. Under such circumstances, the mortgagee might have realized enough to pay his claim out of a portion only of the goods. In such case the remainder of the stock would have been liable to attachment for the debts of the mortgagors. "We are very clear that a legal fraud can be committed by the mortgagee and participated in by the purchaser from him against the rights of creditors of the mortgagor. Assuming, then, that the judgment in the prior action between Rankin and Bell is an adjudica tion of the validity of Rankin’s mortgage, we still think that such a fraud might be committed in the disposition of the mortgaged goods as would absolutely defeat the plaintiff’s claim. In this action it is not enough for the plaintiff to show that the property was not subject to attachment. He asks affirmative relief, and he bases his right to that relief on a transaction which the jury has found to be fraudulent. How ever weak the defendant’s title may be, the plaintiff’s fraud defeats his claim. The judgment is affirmed. All the Justices concurring.	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The opinion of the court was delivered by Allen, J. : It appears from the alternative writ of mandamus issued in this case that an action was commenced in the court of common pleas of Wyandotte county by G. H. Simmons et al. against the City of Argentine et al. to enjoin the collection of a special tax, and that judgment was rendered therein in favor of the plaintiffs. The case was brought to this court for review, and the judgment of the court of common pleas was reversed, and the cause remanded, with directions to sustain the defendant’s demurrer to the plaintiffs’ evidence, and render judgment thereon in favor of the city. (City of Argentine v. Simmons, 54 Kan. 699.) Thereafter a mandate was duly issued to the court of common pleas to carry into effect the judgment of this court. The plaintiffs then filed a motion for a rehearing in this court, and for a modification of the mandate. On the 30th of April, 1895, this motion was overruled. On the 2d day of May following the plaintiffs filed a motion for a new trial in the court of common pleas. On the 6th of June, on motion of the defendant, judgment was entered by the court of common pleas in accordance with the mandate of this court. On the 15th of June the motion of the plaintiffs for a new trial was heard, over the objection of the defendant, and sustained so far as to allow the plaintiffs to prove the insufficiency of the petition for the improvement for which the tax was levied. On tlie 16th of September, 1895, the defendant filed a motion to set aside the order. This motion was overruled on the day it was filed. On application of the city, an alternative writ of mandamus was issued, commanding the defendant, Anderson, as judge of the court of common pleas, to set aside the order granting a new trial, and enter final judgment in favor of the defendant, or show cause before this court. The defendant moves to quash the writ. This case is unlike that of Duffitt v. Crozier, 30 Kan. 150. In that case special findings of fact had been made by the court, on which this court directed what judgment should be entered. On the return of the mandate, instead of entering judgment in obedience to its command, the judge proceeded to hear further testimony and make additional findings. In tills case the mandate of this court has been literally obeyed. The only real purpose of this proceeding is to set aside the order granting the plaintiffs leave to introduce further testimony on a particular branch of the case. Mandamus is not a proper action for the purpose. The order is one that may be reviewed on petition in error. As to the right of the court of common pleas to entertain a motion for a new trial in a case where this court has reversed its judgment and directed that a demurrer to the plaintiff’s evidence be sustained we express no opinion, but prefer to leave the question for determination when properly presented. The motion to quash the writ is sustained, and judgment will be entered against the plaintiff for costs. All the Justices concurring.	[ -16, -22, -75, -115, 106, -64, 18, -104, 75, -79, -92, 83, -51, -102, 21, 105, -66, 61, 80, 105, -58, -90, 38, 107, -6, -9, -11, -107, 55, 77, -90, 86, 76, 48, 10, -107, 102, -60, 65, 20, -122, 9, -119, -60, -47, 72, 48, 122, 18, 75, 49, 15, -13, 46, 24, -61, 105, 44, -39, -67, 93, -79, -86, -107, 79, 6, 49, 38, -104, -121, 72, 42, -112, 49, 7, -24, 123, -90, -122, 86, 109, -7, 13, 122, 98, 65, 60, -17, -8, -100, 12, -1, -99, -89, -110, 89, -22, -95, -74, -103, 101, 22, 7, -2, -31, 5, 29, 108, 12, -118, -108, -77, -113, 36, 2, 83, -49, 35, 48, 112, -113, -46, 93, 71, 51, 27, -113, -76 ]
The opinion of the court was delivered by Johnston, J. : The Erie Cattle Company, of Arizona, entered into an agreement with Guthrie & Byram to furnish pasturage for 600 head of cattle at a stipulated price, and the following is a written memorandum of the agreement: “ Euclid Ranch, Chase County, Kansas, February 17, 1890.— Guthrie & Byram, party of the first part, of Chase county, Kansas, and the Erie Cattle Company, of Cochise county, of Arizona territory, party of the second part: The party of the first part agrees to furnish grazing lands for 600 steers at $1.75 per head per grazing of 1890. We also agree to keep the said cattle in inclosed pastures, and to furnish not less than 31 acres per head, with sufficient salt and water. We also agree to help receive and deliver said cattle from the nearest railroad station, and furnish board for one man while he may be here looking after the said cattle. The party of the second part agrees to furnish 600 steers for the grazing season of 1890, at $1.75 per head. The payment per the said grazing lands shall be $150 in cash, and the balance when the said cattle are removed from the pastures. Guthrie & Byram. Erie Cattle Company, B. JP. Brown, Bros” A large number of cattle were placed by the company in the pastures of Guthrie & Byram, and at the end of the grazing season and after the charges for the grazing had been paid, the cattle company brought an action to recover damages for the breach of the contract, alleging that the defendants had failed to furnish sufficient water under the contract, which resulted in diminishing the weight and value of the cattle. In their answer, the defendants alleged that the plaintiff represented that the cattle to be furnished were of a high grade, of a quiet disposition, such as could be restrained within the fences around the defendants’ pastures ; that they would be brought from Arizona at a suitable time for putting them on grass ; but, instead of their being as represented, they were wild, western cattle, unused to restraint or control, and were put in the pastures before the commencement of the pasture season. It is alleged by way of counter-claim, that during the time the cattle were held in the pastures in advance of the pastotirage season they tramped and injured the pastúrelo the damage of the defendants in the sum of $350. There is also a claim for an additional allowance of damages because of the' wild nature of the cattle, making it more difficult and expensive for the defendants to perform their part of the contract. Upon the trial, which was had with a jury, the verdict was in favor of the defendants, the jury finding that the water-supply was sufficient; that the injury and damage from holding the cattle on defendants’ land before the beginning of the grazing season was $105.25 ; that by reason of the wild nature of the cattle the defendants were put to extra trouble and expense in caring for them and for injury to their fences in the sum of $18.75 ; and a further allowance of $15 was ■ made for the extra care and expense of the defendants in delivering the'cattle, because they were not the kind of cattle which the cattle company represented them to be. Numerous objections are urged to rulings made in the course of the trial, many of which are deemed to be immaterial. The findings of the jury appear to be well sustained by the testimony, and the answer of the defendants warrants the judgment that was rendered. No error was committed in excluding the evidence of McNair as to the motive that he had for shipping some of the cattle to market before the end the season, nor is there any good ground to complain of the testimony concerning the statements made by him with reference to the cattle. He was an office? of the company who had the control and management of the cattle in Kansas, and the statements made by him with respect to their quality and disposition were admissible in evidence under the issues as made. The principal complaint is of the admission of parol evidence, which, it is claimed, varied and enlarged the written contract of the parties. Testimony was received that the president of the company represented that the cattle to be placed in the pastures were high-grade cattle, quiet in disposition, and not wild cattle of the kind usually found in the western country. An examination of the writing discloses that it was only a memorandum of an agreement, and without a resort to the surrounding circumstances or parol explanation would be very indefinite and ambiguous. Upon its face -it does not indicate where the grazing lands were situate, whether the steers-were 1, 2, 3, 4 or 5 years old, nor whether they were quiet and such as could be kept within in closures, or were wild and uncontrollable. Although there is an agreement to help receive and deliver the cattle from the nearest railroad station, the point where they were to be received or from which they were to be delivered is not named. Other features of the agreement are' equally indefinite, and hence the necessity for parol testimony to explain the intent of the parties. While, as a general proposition, parol testimony is inadmissible to contradict or vary the terms of a written'contract, it is true that all written contracts may be examined by the light of extrinsic and surrounding circumstances. Where the writing is indefinite and ambiguous, parol proof may be received to show the relations and the real meaning and intent of the parties. It cannot be carried to the extent of showing anything contrary to what is expressed in the writing, or what may be fairly and legally implied from it. Under the circumstances, we think explanatory testimony was admissible, and also that it was competent to prove any independent parol agreements contemporaneously or subsequently made. The charge of /the court was full and fair, and although some objection is made we think the case was fairly presented /to the jury Finding no errors in the record, the judgment of the district court must be affirmed. All the Justices concurring.	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The opinion of the court was delivered by Johnston, J. : The questions argued in this case must be determined from the findings of fact, as neither party has preserved the evidence upon which they are based. The facts stated by the trial court show that Wilder owned an addition to the city of Topeka and was desirous of erecting houses in the same. He authorized the building of two houses upon his lots, azid indicated the general design, elevations and plans upon which to build, and also stipulated the approximate cost of the same. McCann, who was acting with and for him, agreed to purchase the lots upon which the houses were built, upon certain conditions with which he never complied. Houses of the character specified by Wilder were built at about one-half of the estimated cost, but McCann never obtained any title to the lots, and if he ever acquired any interest by reason of his proposed purchase he formally surrendered and transferred it to Wilder. The houses were erected upon ground which then belonged to Wilder, and the title is in him now, and these houses have become a part of his real estate, but he has paid nothing to anyone, and those who have contributed their labor and materials to enhance the value of .his property have received nothing. In his behalf it is contended that McCann acquired no interest in the land to which the liens could attach, and that if he ever possessed any interest in the property it had never ripened into an equitable title, and that he had no authority to subject the property to a lien. Much reliance is placed on Lumber Co. v. Schweiter, 45 Kan. 207, but the rule of that case hardly applies to the facts in this-one. There they sought to establish liens against the proposed purchaser of the property, while here- they are seeking to establish liens against the owner. In that case the proposed purchaser had specifically stipulated that, until a conveyance of the property was made and a back mortgage given, the legal and equitable title should remain in the original owner, and until the conveyances were made the proposed purchaser could not subject the property to any liens. In that case the main purpose of the contract was the sale of lots, while here the principal purpose appears to be to procure the building of houses upon the addition of Wilder. Instead of stipulating that the proposed purchaser should not subject the property to any liens, as in the Scbweiter case, Wilder appears to have contemplated that liens might be' created against it, as he stipulates that no conveyance will be made by him to McCann nor any money loaned thereon until it is free and clear of any mechanics’ or other liens or any liabilities whatever for labor or material. He gave McCann possession of the lots with authority to procure the erection of houses thereon, and he certainly foresaw that work and materials would be expended upon his lots, and from the contract it seems that in carrying out his purpose he supposed that liens would be created against the property. The authority which he conferred in effect made McCann his representative or agent in obtaining the erection of the houses. The authority did not go to the extent of creating a personal obligation against Wilder, but under the circumstances we think it did give McCann power to subject the property of Wilder to liens for the improvements which he arranged should be made upon the same. It will be observed that he selected the plans and elevations, agreed upon the specifications, which were reduced to writing, and fixed the limit of cost of the buildings. He agreed to pay money toward the cost of the houses, and while they did not cost nearly as much as he contemplated they would, just such houses as he specified and agreed should be built were built. The trial court specifically finds that the houses were built in accordance with the plans, elevations and written specifications agreed upon by Wilder. It is true he expected the houses would cost from $2,500 to $3,000 each, while houses of the kind and quality designated by him were actually built for less than $1,000 each. Wilder visited the premises once during the construction of the houses, and also after they were completed. He objected to them, claiming they were not built ac cording to the plans, nor of proper dimensions; but the findings of the court clearly overrule his objections where they state that the houses were built in pursuance of the written specifications and in accordance with the plans and elevations. No objection was then made as to the quality of the houses, nor that the cost price had not been marked sufficiently high. We think a clear implication arises from the contract of the parties that McCann was authorized and empowered to procure the labor and materials necessary to the construction of the houses erected on Wilder’s lots. AYilder was not to convey the lots until after the houses were built. To comply -with his agreement, it was necessary for McCann to procure the erection of such houses as Wilder stipulated and specified should be built. The lienors furnished the material and labor which were used in carrying out Wilder’s purpose. He never parted with the legal or equitable title to the land upon which the houses were erected, and now, after they have been erected in accordance with the plans and specifications, and after McCann has surrendered all his rights under the contract to AVilder, it would be a great injustice to allow Wilder to hold the property enhanced in value by the labor and material of the lienors without paying for such labor and material. We think that, by his contract, Wilder has subjected the lots in their improved condition to the liens of the claimants. No reason is seen for allowing Wilder a lien for the purchase-money of property which was never conveyed and for which no consideration was paid. The conditions of the contract of purchase were never complied with, and if McCann ever acquired any interest in the property it is a little more than a shadow. It is a question of grave doubt whether it amounted to such an interest as could be sold or subjected to liens. However much it may have been, it was relinquished to Wilder, who has had throughout the full legal and equitable title to the lots. McCann has, therefore, no claim against Wilder for the lots, and Wilder in turn has no lien upon his own lots by reason of the unperformed contract and the relinquished rights of either party under it. As tending to sustain the views stated, we cite Manufacturing Co. v. Kountze, 30 Neb. 719 ; Henderson v. Connelly, 123 Ill. 98; Hill v. Gill, 40 Minn. 441; O’Leary v. Roe, 45 Mo. App. 567 ; Lumber Co. v. Mosher, 88 Wis. 672 ; Hickey v. Collom, 47 Minn. 565. Under the facts, the judgment and decree of the court should be modified by denying Wilder any lien upon the premises, and the plaintiffs in error should be adjudged to have first liens upon the premises, all equal in point of priority. The judgment so modified will be affirmed. All the Justices concurring.	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The opinion of the court was delivered by Parker, C. J.: This is an appeal from a judgment sustaining a demurrer to a second amended petition for the reason that pleading was filed after the cause of action was barred by the statute of limitations and the original petition did not state a cause of action. The issue before us can best be presented if we first consider the procedure resulting in the judgment. On July 14, 1961, plaintiff filed her petition alleging that she had sustained injuries due to the negligence of the defendant. A motion to make definite and certain and to strike was lodged against the petition. The motion was sustained in part and overruled in part. On February 27, 1962, the plaintiff filed her first amended petition. Again a motion to make definite and certain and to strike was sustained in part and overruled in part. Plaintiff filed her second amended petition on September 14, 1962. Defendant demurred to such pleading on the ground it did not state facts sufficient to constitute a cause of action against him. Thereupon, plaintiff moved the court for an order allowing her to amend the second amended petition by setting forth the width and surface of the roads at the intersection where the collision occurred and to allege definitely the point of collision between the vehicles. The court permitted these amendments. Defendant then orally moved for permission to amend his demurrer to include the additional ground that plaintiff’s second amended petition, as amended, did not state a cause of action because of the running of the statute of limitations. This motion was sustained and the amendment to the demurrer was allowed. Subsequently, and on November 23, 1962, the demurrer was sustained as per the court’s memorandum opinion attached to the order. In a memorandum opinion, dealing with the question whether the second amended petition related back to the original petition, the trial court stated; . . The trouble with this argument is that plaintiffs had not stated a cause of action imperfectly. They had not stated a cause of action at all and, therefore, there was nothing to amplify. In this connection, it may be noted that the amendment when finally made was not in response to an existing motion or a recently made motion on the part of the defendant, but was made long after the defendant gave up his attempt to secure the required information and had filed his demurrer. There is some question in my mind that the amendment made after the second amended petition was filed is sufficient yet to cause it to state a cause of action, but it does not seem necessary to go into that question. In view of what has been written above, it is the opinion of the court that the demurrers to the second amended petitions filed and as amended should be sustained.” The trial court’s statement, in the same opinion, as to why the original petition did not state a cause of action reads: “. . . It is noted that certain conclusions of the plaintiffs did use the word collision, but only in stating a conclusion. These conclusions were ordered stricken. There was no indication as to what collided or any of the circumstances of any collision. It was not indicated whether the vehicles collided with each other or with some third vehicle or with some possible stationary object. Generally speaking, the Kansas Supreme Court has, upon many occasions, ruled that conclusions in pleadings are not allegations stating any part of a cause of action unless they are properly predicated upon the definite acts or omissions set forth in the pleadings. . . .” In view of the statements made by the trial court in its opinion it is necessary that we examine the original petition for the purpose of determining whether that pleading stated a cause of action. Omitting formal averments identifying the parties, allegations as to the extent and nature of the injuries sustained and the prayer, the original petition alleged: “m. “That on or about the 29th day of July, 1959, at approximately 2:30 in the afternoon the Plaintiff was driving a 1957 station wagon east on a county road approaching an intersection with a side road, which side road intersects said county road from the north only. Said side road coming to a dead end and not extending to the south of the county road on which the Plaintiff was traveling. This dead end intersection is at a point approximately two miles south and one mile west of the city limits of Fall River Kansas. “rv. “That at the same time the Defendant, Henry H. Meier was driving his 1946 Chevrolet truck south on said side road approaching the aforementioned dead end intersection, and the Defendant, Henry H. Meier, did, without yielding the right of way, drive his truck into said county road and did start to make a left turn in front of the Plaintiff’s oncoming automobile. “That the Defendant, Henry H. Meier, was operating his vehicle in a careless and reckless manner in disregard of the rights of the Plaintiff and the safety of other persons on the highway, contrary to the statutes of the State of Kansas, and to the common law rights of the Plaintiff; that the injuries sustained by the Plaintiff were the direct and proximate result of the negligence of the Defendant in the following particulars: “a. In negligently and carelessly failing to keep a proper lookout for other-vehicles, and particularly the vehicle driven by the Plaintiff. “b. In driving at a reckless, unsafe rate of speed under the circumstances. “c. In failing to exercise due care so as to stop or alter the course of his truck to avoid the collision after he saw, or in the exercise of due care should have seen, the necessity of so doing. “d. In failing to equip said truck with proper brakes, or in failing to apply the brakes in time to avoid the collision after he saw, or in the exercise of due care should have seen, the necessity of so doing. “e. In negligently and carelessly driving into an intersection of a through roadway in front of the oncoming car which the Plaintiff was driving. “f. In failing to have his vehicle under proper control. “g. In improperly turning at an intersection in violation of G. S. K. 1949, 8-544(b). “h. In negligently and carelessly approaching and entering an intersection in violation of G. S. K. 1949, 8-550(a) and (b). “i. In negligently entering a highway from a roadway in violation of G. S. K. 1949, 8-553.” This court has announced in numerous cases that where the original petition imperfectly alleges a cause of action without sufficient detail the averments may be amplified by an amended petition and the amended petition will relate back to the original if filed after the statute of limitations had run. In Foster v. Humburg, 180 Kan. 64, 299 P. 2d 46, the court stated; “It is a well-established rule in this state that where the original petition alleges a cause of action but does so imperfectly and with insufficient detail, and the additional allegations of an amended petition are only an enlargement and amplification of the averments of the original by setting out more definitely that which was previously imperfectly pleaded and do not set up a new cause of action, the fact that the statute of limitations has run when the amended petition is filed is not a bar to recovery, for in such case the amended petition relates back to the date of filing of the original one. (Smith v. LaForge, 170 Kan. 677, 228 P. 2d 509; Talbott v. Farmers Union Co-op Elevator, 174 Kan. 435, 439, 256 P. 2d 856; Sundgren v. Topeka Transportation Co., 178 Kan. 83, 283 P. 2d 444; Maddox v. Neptune, 175 Kan. 465, 264 P. 2d 1073.) The court erred in sustaining defendants’ demurrers to plaintiffs’ amended petitions.” (p. 69.) For another decision of like import see Rudy v. Whaley, 188 Kan. 118, 360 P. 2d 863. Before considering the specific allegations of the original petition for the purpose of determining whether it states a cause of action to which the amended petition relates back, consideration must be given to the general rules which govern its construction. For present purposes, the original petition must be construed under the same rules as it would be construed had it been challenged by a general demurrer without a motion to make definite and certain having been lodged against it. The rule, sometimes applied, that the allegations of a petition will be strictly construed against the pleader where a proper motion to make definite and certain has been successfully resisted, has no application in considering the question before us. The rule applies only in considering the sufficiency of the amended petition, as against a demurrer, after the original petition, which stated a cause of action under the rule of liberal construction but without sufficient detail, has been motioned. The allegations of the petition must be liberally construed. In Carpenter v. Strimple, 190 Kan. 33, 372 P. 2d 571, we said: “Where — as here — a challenged pleading is subject to a liberal construction a demurrer admits all well pleaded facts and its allegations must be liberally construed in favor of the pleader and all reasonable inferences to be drawn therefrom must be indulged in his favor (Hatcher’s Kansas Digest [Rev. Ed.], Pleading, §§35, 155; West’s Kansas Digest, Pleading, §§34 [1], 214 [2]).” (p. 37.) It is not proper to segregate allegations and determine their sufficiency. Regard must be given to the context of the entire pleading and all allegations considered together. See Kitchen v. Smith, 184 Kan. 188, 334 P. 2d 413; Hickert v. Wright, 182 Kan. 100, 319 P. 2d 152; Fyne v. Emmett, 171 Kan. 383, 233 P. 2d 496. Finally, and most important, the general conclusions of fact, which are not challenged by a motion to make definite and certain, are admitted by a demurrer. In Stuckey v. Shultz, 173 Kan. 343, 245 P. 2d 1197, we held: “Following the rule that as against a general demurrer a petition must be liberally construed where no motion has been filed asking that its allegations be made more definite and certain it is held that it was error for the trial court to sustain the demurrer to a petition, the material portions of which are set out in the opinion, without such a motion having been first filed and called to its attention.” (Syl.) And in the opinion said: “At the outset it should be stated that when a petition is attacked by a demurrer on the sole ground it fails to state facts sufficient to constitute a cause of action, without first having presented and obtained a ruling on a motion to make its allegations more definite and certain, there can be no question respecting the rule to be recognized and applied by this court in testing its sufficiency. “Early in its history this state adopted the statutory rule of liberal construction of pleadings. G. S. 1949, 60-736, reads: “ ‘In the construction of any pleading, for the purpose of determining its effect, its allegations shall be liberally construed with a view to substantial justice between the parties.’ “This court, in construing the above statute and in determining the force and effect to be given its terms, has repeatedly announced and consistently adhered to the rule to be followed under the conditions and circumstances here involved. “See, e. g., Downey v. Phillips, 137 Kan. 362, 20 P. 2d 453, which holds: “ ‘Where a demurrer is filed to a petition on the ground that it does not state a cause of action, without first presenting a motion to have the allegations of the petition made more definite and certain, the allegations of such petition will be liberally construed in favor of the pleader. “ ‘A petition containing the necessary allegations to advise the defendant of the claim against him and of the relief demanded is good on demurrer although stated in an awkward and unskillful manner.’ (Syl. ¶¶ 1, 2.) “See, also, Owens v. Deutch, 156 Kan. 779, 137 P. 2d 181, where it is said: “ ‘Where the substantial facts which constitute a cause of action are stated in a petition, or can be inferred by reasonable intendment from the matters which are set forth, although the allegations of those facts are imperfect, incomplete and defective, the proper mode of correction is not by a demurrer to the petition but by a motion before the trial to make the averments of such petition more definite and certain by amendment.’ (Syl. f 1.) “For more recent cases citing the foregoing decisions and approving the rule therein announced see Jones v. Rainbolt, 162 Kan. 353, 176 P. 2d 855; Campbell v. Kansas Power & Light Co., 165 Kan. 134, 193 P. 2d 177; Cooley v. Shepherd, 170 Kan. 232, 225 P. 2d 75; State, ex rel., v. Leopold, 172 Kan. 371, 373, 240 P. 2d 138. “Other decisions dealing with the general subject and to the same effect will be found in Hatcher’s Kansas Digest, Pleading, §§ 35, 37, also West’s Kansas Digest, Pleading, §§ 26, 34 (1), (3).” (pp. 344, 345.) When the allegations of the original petition are considered in the light of the foregoing rules of construction we are forced to conclude that a cause of action was stated in that pleading, albeit imperfectly. Subparagraphs a to i of paragraph V thereof set out the general allegations of negligence. Paragraphs III and IV definitely informed the defendant where and how the accident oc curred. And subparagraphs c and d of paragraph V informed him that a collision did result from his negligence. The only reasonable inference that can be drawn from these allegations, when considered together, is that the defendant collided with plaintiff’s automobile. Finally it must be determined whether the second amended petition states a cause of action. Without extending this opinion, by setting out its lengthy allegations, we do not hesitate to conclude that it does. Defendant directs our attention to Arensman v. Kitch, 160 Kan. 783, 165 P. 2d 441, which holds: “After a motion to make a pleading more definite and certain has been sustained and later such pleading has been amended the allegations of the amended pleading with respect to matters on which the original pleading was motioned will be strictly construed and given the construction which is most unfavorable to the pleader.” (Syl. f 3.) We recognize the rule above stated but doubt if it has application under the facts of this particular controversy. The record discloses that plaintiff has never challenged the general allegations contained in subparagraphs a to i of paragraph V of the petition by motion to make definite and certain. In Garrison v. Hamil, 176 Kan. 548, 271 P. 2d 307, we said: “It appears the fact appellee was required to stop by an improperly operating warning signal is the only negligent act with which appellant is charged. Appellant asserts that is not an averment of fact but a conclusion. Although a motion to make the petition definite and certain was lodged and overruled that particular allegation was not motioned. Under varying pleadings it has been held an allegation not challenged by motion is admitted for purposes of a demurrer even though it may be in the nature of a conclusion of fact. (Brock v. State Highway Comm., 157 Kan. 252, 258, 139 P. 2d 811; Rogers v. Beiderwell, 175 Kan. 223, 262 P. 2d 814.) In any event we find nothing particularly wrong with the allegation as a statement of fact. However, whether that allegation constitutes a cause of action against appellant is the question to be determined in the light of the entire petition.” (p. 550.) (Emphasis supplied. ) Be that as it may, under the confronting facts and circumstances, we are convinced the second amended petition states a cause of action whether it is liberally or strictly construed. The supplement or amendment to the second amended petition took care of the trial court’s suggestion that “There was no indication as to what collided or any of the circumstances of the collision.” It reads: “That the Defendant did drive his vehicle into the left front side of the Redmond vehicle at a point near the east edge of said intersection; that the said collision and the injuries and damages inflicted upon the Plaintiffs were the direct and proximate result of the negligence of the Defendant in the following particulars Based on what has been heretofore stated and held, we are satisfied and therefore hold: (1) That the original petition alleged a cause of action even though imperfectly and without sufficient detail. (2) That the amended petitions only enlarged and amplified the allegations of the original petition, and no new theory or cause of action was stated. (3) That the fact the statute of limitations had run at the time the amended petitions were filed is not a bar to recovery, as the second amended petition relates back to the filing of the original petition. It necessarily follows that the district court erred in sustaining the demurrer to the second amended petition and that its judgment sustaining such demurrer must be reversed with instructions to set it aside. It is so ordered. Fontron, J., not participating.	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The opinion of the court was delivered by Porter, J.: In this proceeding the appellant was adjudged to be the father of a bastard child and required to give bond for the payment of $1,200 towards the infant’s support. On July 29, 1917, when the child was bom, the mother, Cecil Brown, was nineteen years old and unmarried. She was a high-school graduate and had attended Kansas University two years. • On August 7, 1917, she swore to the complaint charging appellant, Paul Lyons, a boy sixteen years old and still in high school, with being the father of her child. When the trial occurred, on November 15, 1917, the complaining witness lacked but a few days of being twenty years old; she is said to be of prepossessing appearance, and from her testimony it is apparént she is of more than ordinary intelligence and education. Aside from the disparity between her age and that of the appellant; and the fact that she admitted upon the trial to having had intercourse with another person, a brother of the appellant (whether younger fhan he does not appear), the case presents no unusual features, and depends for the most part upon questions of fact which have been found by a jury. We must assume that the unusual features to which we have ref erred-were fully considered by the jury in determining the truthfulness of the story told by the complaining witness, and that the judge of the trial court, who saw and heard the witnesses on both sides, gave due weight to all the facts and circumstances of the case, in refusing appellant a new trial. The purpose of the proceeding is to provide support for the child. The law and the courts are not concerned with the question as to which of the parents was seduced. The conflict in the evidence has been determined by the jury and the court, and unless the appellant'shows error in the proceedings, the judgment must be affirmed. Miss Brown testified that the intercourse, which resulted in the. birth of the child, occurred about eight or nine o’clock on a Sunday night in the latter part of October, 1916, on the roadside about a half mile wést of No. 6 schoolhouse, and that neither she nor her parents were aware of her condition until her confinement. It was shown by her testimony and that of. the attending physician that the child was fully developed. At' the preliminary examination, Miss Brown testified that the second intercourse with the boy occurred in the stone quarry west of the university some time in the winter, and she thought it was in the month of January, 1917; that it occurred about 4 o’clock in the afternoon, on her way home from the university. At the trial, she testified to having had intercourse with him more than once in October and November, 1916. She lived half a mile from appellant’s home; she had known him and the family about seven years. While there .was testimony from herself and her parents that, Paul Lyons came to her home and. took her out riding on two occasions in the fall of 1916, the evidence does not show that the two were often in company, or appeared together in social gatherings. She ad mitted on cross-examination that she had never spoken to him about marriage. ' The appellant did not testify. A number of witnesses called in his behalf testified that on each of the five Sunday evenings in October, 1916, he attended a series of lectures given at a, church in Lawrence, which began at 7:30 and lasted until 9 o’clock, and that he was present all the time during each lecture. Complaint is made of the refusal to give eight instructions requested' Most of these were quite fully covered by the instructions given. The court refused to give an instruction that the standard period of gestation is 40 weeks, or 280 days. In The State, ex rel., v. Stout, 101 Kan. 600, 168 Pac. 853, it was held that an instruction in respect to this matter might have been given, but that it was not error to refuse it. The instruction as requested in this case would have been contrary to the only medical testimony offered, which was that of the attending physician, who testified that the period varies from 270 to 290 days; besides, if the court had given a proper instruction on the subject, it would not have told the jury anything they did not already know. We think the court was right in refusing to instruct .that the intercourse which resulted in the birth must have-occurred on October 22, 1916. The state’s testimony was that the intercourse occurred some time in the latter part of October, on a Sunday evening, while the witness stated that she thought it was probably October 22. Her entire testimony with respect to her. relations with the appellant was properly left to the jury; and it was likewise for the jury to consider any conflict shown between her testimony at the trial and that given by her at the preliminary hearing. For the same rfeason, an instruction to the effect that if appellant had shown by a -preponderance of the evidence he was at another place upon the date fixed by the relatrix, then the verdict must be in his favor, was properly refused. In the Stout case, supra, the same defense was relied upon, and it was held that, while an instruction upon the evidence respecting an alibi would not have been improper, it was not error to refuse to single out that feature of the defense. Besides, the instruction asked for by the appellant in this case was too broad. Instruction No. 6, to the effect that if the jury should find the evidence equally balanced upon the question as to whether the appellant was the father of the child, they should find in His favor, was rightly refused. The court gave the usual instructions with respect to the burden of proof, the preponderance of evidence, and thé duty of the jury in weighing and giving effect to the testimony of each witness. The record does not sustain the contention that appellant was denied an ópportunity to show an ulterior motive actuating the relatrix in having him arrested and charging him with being the father of her child. On cross-examination Miss Brown testified that she knew the father of Paul Lyons, and knew that Mr. Lyons had been farming and selling engines. The court sustained objections to the following questions: “Yes; and you have known all that time that he was the holder of considerable real estate, haven’t you, in this neighborhood? “You knew and had in mind when you brought this case, that Mr. Lyons was a man with a great deal of property, isn’t that true?” Counsel then offered to show by cross-examination that the motive which actuated her in making the charge was to obtain a large sum of money from appellant’s father.' The offer was made in writing, and the court ruled that appellant might make the showing by any competent testimony. The appellant seems to have stood upon the ruling and to have abandoned any further effort to show what property Mr. Lyons owned, or any other circumstance tending to prove an ulterior motive on the part of the relatrix. The testimony produced by the state showed that the relatrix had lived with her parents for about seven years within a half mile of the home of appellant’s father; and she had admitted that she knew the boy’s father and the business he was engaged in. We find no error in the ruling. When Miss Brown was on the witness stand she held the child in her- arms. It was in the court room during the trial. It was not formally offered in evidence, but in her testimony she said it was the child whose paternity was in question. In his closing argument the county attorney called the jury’s attention to the resemblance between the child and the appellant, requesting them to look at both and to see if there wasn’t some resemblance. Counsel objected and asked the court to rule upon the objection. The court stated that the argument was being taken down, and- that it was the custom of the court to rule on objections of that nature in an application for a new trial, and to permit counsel to take the risk of making statements outside the record. The county attorney then repeated his statements and again called the jury’s attention to the resemblance between the child and the appellant. It is claimed the action of the county attorney was misconduct which should reverse the case, and further, that the court erred in refusing to give an instruction, in substance, that different persons with equal opportunities for observation will arrive at different conclusions as to whether an infant bears a resemblance to another said to be its parent; and that the features of a child less than four months of age are so immature and undeveloped as to be unreliable in determining its parentage; and also in refusing to instruct as follows: “The infant involved in this case has not been introduced in evidence, and its appearance, if you have observed it, should not be considered by you in any manner for the purpose of determining its paternity.” The child was three and a half months old at the time of the trial. The giving or refusing of the instruction was within the sound discretion of the trial court. It was said in The State, ex rel., v. Browning, 96 Kan. 540, 152 Pac. 672: “An exercise of the trial court’s discretion can seldom be reviewed on appeal, and should the evidence afforded by an exhibition be weak or inconclusive or worthless the presumption on appeal would be that the jury gave it no more weight than it was entitled to receive.” (syl.) The court, in considering the motion for a new trial, has reviewed the remarks of counsel for the state in the closing argument, and the presumption must be that, the court believed the appellant was not prejudiced by what occurred. The failure to appoint a guardian ad litem for the appellant is urged as reversible error. In the Stout case, supra, where the defendant was an infant, the court appointed a guardian ad litem after the jury had been impaneled; and it was held that the appointment was in ample time to protect his rights. There was no request for the appointment of a guardian in this case, although it was apparent that the appellant was an infant. The failure to appoint was not such error as would justify a reversal. It is not denied that" the parents of the appellant were present in court during the trial, sat by his side, and furnished- him all the aid and assistance that a guardian ad litem could have furnished. He was ably represented by counsel, who seem to have taken every step necessary to protect his rights. It is insisted that under chapter 184 of the Laws of 1917, extending the period of women’s minority to twenty-one years, the relatrix was a minor when the case was tried, and complaint is made that no guardian ad litem was appointed for her. The record, however, shows she must have been eighteen in November, 1916, and the act of the legislature of 1917 does not purport to affect and, clearly, it was not the intention to change the status of one who had already reached the age of majority under the former law. (Smith v. Smith, ante, p. 629, 180 Pac. 231.) The judgment is affirmed.	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The opinion of the court was delivered by Mason, J.: Susan Reynolds, the widow of John Reynolds, brought an action against the National Bank of Commerce, of Wichita, for $1,380.61 which she alleged to be due on account of a collection made for her. The bank answered in effect that the plaintiff’s husband had brought to it a pass book of an eastern savings bank showing that sum to her credit, with an order for its payment to the defendant, signed by the plaintiff, and had directed the proceeds to be credited to his account; and that the money had been collected and credited to the plaintiff’s husband, canceling an overdraft, the balance having been checked out by himself and his administrator. A verdict was returned for the defendant, and the plaintiff appeals. The burden of proof was held to be upon the defendant, in whose behalf evidence was produced to this effect: Reynolds had carried a checking account in the bank for some years. His wife had never done any business with it. The cashier had known her for about a year. The receiving teller did not know her, but knew that Reynolds had a wife and that she lived in Wichita. About February 12, 1917, this teller called Reynolds’ attention to an overdraft of $514 and asked to have it made good. Reynolds said that he would have it fixed up in a few days by a transfer of money from the east. About February 21, he brought in the pass book referred to, with an order signed by his wife reading as follows: “Treasurer of the Connecticut Savings Bank, New Haven, Conn., pay •'to the Nat’l. Bank of Commerce, Witchita, Kan., what may be due on my deposit book No. 67,331. Mrs. Susan Reynolds. “Witness, John Reynolds.” Reynolds at first asked credit for the amount shown by the book, but the teller explained that as the interest had not been computed the bank would take it only for collection. He then requested that after collection the proceeds should be credited to his account, and this was done, the bank not knowing that Mrs. Reynolds claimed to own the money. The plaintiff testified that she gave no one any authority to have the money deposited to the credit of her husband; that on May 5 (four days after his death) she went to the bank and asked for it, and was told it had been transferred to her husband’s account; that she asked how that could be done without her knowledge, and was told that it was customary; and that she had not previously known of the money having been paid. 1. The defendant argues that the jury found that the plaintiff had authorized her husband to have the proceeds of the collection placed to his credit; that there was both direct and circumstantial evidence to support this finding; and that, therefore, this question of fact is settled in its favor, thus requiring an affirmance of the judgment. While such a finding was made, it was qualified by the statement that the authority referred to was given by the delivery of the pass book and order, so that it amounted merely to a conclusion of law. The general verdict does not imply a finding to the effect stated, for the question of the actual authority of the plaintiff’s husband, was not submitted to the jury as one of the matters upon which a verdict against the plaintiff necessarily depended. An instruction was given to the effect that if the plaintiff delivered the pass book and order to her husband to be' delivered to the bank she thereby impliedly constituted him her agent, not only to make such delivery, but to give directions concerning the disposition of the proceeds, and that if he directed them to be placed to his credit, he did so as the implied agent of the plaintiff, and the bank was authorized to carry out such directions, even although the plaintiff did not in fact expressly authorize such disposition of the money. Substantially the same theory was embodied in a further instruction stating that the bank had a right to presume that the plaintiff’s husband in giving directions as to the disposition of the proceeds was acting within the scope of his apparent authority, and if the bank, without notice to the contrary, carried out his directions and placed the money to his credit, it could not be held liable for having done so. From this statement it is obvious that a verdict for the plaintiff was required by a favorable answer to the three questions: (1) whether the plaintiff had given the pass book and order to her husband for delivery to the bank; (2) whether her husband had directed the money to be placed to his credit; and (3) whether the bank followed his directions without notice of any lack of authority on his part. There was no controversy ^s to the first question, and no conflict of evidence on the second or third, unless such as might arise from conflicting inferences' with respect to the last matter. These issues were largely formal, and if the instructions referred to were correct, the defeat of the plaintiff’s claim became practically a matter of course. ' 2. That question resolves itself into this: Where a person draws upon a debtor, the draft being accompanied by the evi dence of the debt and being made payable to a bank, does the fact that the drawer places such instrument in the hands of an agent to be delivered to the bank protect the bank in using the proceeds for the agent’s benefit, according to his direction, notwithstanding he had in fact no authority to direct such disposition ? On this phase of the matter we do not regard it as material whether the drawer and agent were wife and husband. Where there were other circumstances from which authority to appropriate the proceeds could be inferred, that relationship might have weight in interpreting them, but its existence does not create agency, nor in itself constitute evidence of agency. In Moody v. Stubbs, 94 Kan. 250, 146 Pac. 346, it was held that where a wife executed a deed intended as a mortgage to secure a loan to be made to the husband by the grantee, and intrusted it to the husband for delivery, she could not, in an attack by her upon the validity of the lien created by the deed, be heard to dispute the terms of repayment agreed to between her husband and the grantee (notwithstanding they differed from what she had understood they were to be), on the principle that she had voluntarily placed her husband as her agent in such a situation that the grantee • was justified in supposing that he was authorized'to deliver the deed upon such terms. We do not regard that decision as controlling here, first, because there the deed was used for the general purpose for which it had been intrusted to the agent, the departure from instructions being merely with respect to a matter of detail, while in the supposed case the agent diverted the property of his principal to his own use; and in the second place, because placing a deed in the hands of an agent for delivery to the grantee is not entirely analogous, with respect to the authority to be implied, to giving an agent a draft upon a debtor to be delivered to the payee for collection. We do not think that one who is intrusted with the delivery to a bank of a draft (or other instrument calling for the payment of money) payable to it, has implied authority to receive the proceeds or to direct their use for his own purposes. The fact that the instrument is so drawn or indorsed as to make it payable specifically to the bank, seems to indicate affirmatively that the messenger is not vested with the ownership or control of the proceeds. It follows that the instructions under consideration require the setting aside of the verdict. > 3. The plaintiff contends further, that her demurrer to the plaintiff’s evidence should have been sustained — that the evidence had no tendency to show either an actual authority on the part of her husband to appropriate the proceeds of the draft, or the existence of such conditions as to justify the bank in acting upon the belief that such authority existed. Nowithstanding the general rule that the declarations of an agent are not competent to establish the fact or the scope of his agency, it is argued in behalf of the defendant that the statements of Reynolds to the bank were admissible to show his authority, on the ground that one in possession of property is presumed to be the. owner, and that his declarations are competent for the purpose of showing his interest or claim to it. Reynolds had no possession of the money, and had not even an apparent right to its possession. His possession of the pass book and draft gave him no color of right to the proceeds. It is true that the mere possession of even an unindorsed promissory note payable to a person named is some evidence of ownership as against the marker (O’Keeffe v. National Bank, 49 Kan. 347, 30 Pac. 473; 3 R. C. L. 981, note 7), who of course could have no claim of ownership himself. But possession of such a note is not evidence of ownership against the payee (Durein v. Moeser, Adm’x, 36 Kan. 441, 13 Pac. 797; Note, 50 L. R. A., n. s., 588; 3 R. C. L. 981, 982, note 10). As against the maker it may be presumed that the possession of the holder is rightful and indicates that the payee has transferred it to him without' indorsement — by an oral assignment. But such a presumption is not to be indulged as against one who on the face of the paper appears to be entitled to its proceeds. On a question of ownership as between different claimants the story told by the writing prevails over the mere fact of possession. That reasoning applies here. Regarding the draft as property in the sense in which a promissory note is property, the written evidence established the defendant’s legal title to the proceeds, and the question for whom i,t was to hold them was not affected by the hands through which the instrument had passed, since the writing showed the character of the transaction. It disclosed a purpose to transfer the funds from the eastern bank to the defendant. The manual possession- of the order in the process of its delivery to the payee named was no evi dence-of a beneficial interest in the bearer. Nor do we consider the possession, of the pass book and' draft such a possession of property as to make competent-the statements of the holder regarding the ownership of the proceeds. It is further contended that Reynolds’ right to the money collected was inferable from these circumstances: The plaintiff had never done business with the bank. She knew the money which in the savings, bank had been drawing 4 per cent interest would earn nothing after its transfer to the defendant bank. She made no statement as to why she wanted the transfer made, or what instructions she gave her husband regarding it. She made no inquiry with regard to the collection and asserted no claim to the money until after her husband’s death some seventy days later. So far as concerns the plaintiff’s omission to testify concerning her transactions with her husband, it would seem that she was an incompetent witness (Civ. Code, § 320, Gen. Stat. 1915, § 7222), although her denial of having authorized him to use the proceeds may have opened- the way for a ■ cross-examination on the subject. (Plowman v. Nicholson, 81 Kan. 210, 105 Pac. 602, 106 Pac. 279.) We discover in the matters referred to no substantial evidence that the plaintiff actually gave her husband authority to use the proceeds of the collection. A final contention is that, at all events, this evidence, coupled with the condition of Reynolds’ bank account, the demand made upon him to make good the overdraft, and his promise to do so by the transfer of funds from the east, warranted a finding that the plaintiff had voluntarily created a situation in which the bank was naturally and justifiably led to believe that her husband had authority to use her money to replenish his bank account. The plaintiff admittedly sent the book and draft to the bank by her husband to have the amount due her collected. That she did more than this is not indicated by anything in the evidence, aside from the statements and conduct of her husband, and for these she is not shown to have been responsible. The defendant had notice, by the language of the draft, that the plaintiff had authorized the bank, and no one else, to demand and receive from the savings bank the amount shown by the pass book, nothing being indicated as to what it was to do with the money beyond holding it subject to her order. That it believed the purpose of having the collection made to be to strengthen Reynolds’ credit appears to have been due rather to its confidence in him than to any act of the plaintiff which it knew and relied on. The judgment is reversed, and the cause is remanded with directions to render judgment for the plaintiff.	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The opinion of the court was delivered by Mason, J.: In this case we decided, following the weight of authority, that the fact that an ordinance requires a sidewalk to be kept in repair by the abutting owner does not render such owner liable to a person.injured'by reason of a defect in the walk. In a motion for a rehearing, it is urged that the decision conflicts with Jenree v. Street Railway Co., 86 Kan. 479, 121 Pac. 510, which had not previously been cited. There the city allowed a street railway company to make use of a viaduct forming a part of a street, under an agreement that it should keep in repair the viaduct and the sidewalk forming a part thereof. The company was held liable in an action brought against it by a pedestrian who was injured through its suffering the walk to become unsafe. A number of similar cases are collected in a note thereto in Ann. Cas. 1913C, 217, where the general rule is thus expressed: “A person required by contract, franchise, municipal ordinance, or statute to perform the duty resting on the municipality of keeping its streets in repair and safe for the passage of the public, is liable to a party injured by a defect in a street caused by the failure to perform such duty.” This language may seem broad enough on its face to cover such cases as the present, and the reasoning back of it may be thought to be to some extent applicable thereto; but the fact remains that the rule is almost universally treated as not extending to one whose duty to keep a sidewalk in repair grows out of his ownership of the abutting property. The note referred to recognizes this distinction by expressly excluding “cases involving the liability of abutting owners.” In the cases to which, the rule above stated is applied, the care of the part of the street in question is ordinarily taken over by a public service corporation, either in return for some privilege granted to it, or because the situation is such that the work can be more conveniently handled by it than by the city. ' While the city, of course, is not itself relieved of responsibility, it, in effect, engages the private corporation to handle the matter and looks to it for results, often with the express agreement, which was made in the Jenree case, that the city shall be indemnified against claims growing out of the contractor’s negligence. A law requiring the abutting owner to repair a sidewalk does not usually in terms impose a liability for injuries growing out of defects, and when it does not, it is not considered as contemplating such a liability. The purpose is not to relieve the city of the necessity of looking after the matter directly, but rather to give the individual an opportunity to do the work if he prefers, and otherwise to lay a foundation for charging the cost to the benefited property after the repairs have been made by the city. Here there was nothing in the ordinance to indicate an intention to render the abutting owner liable to individuals. The stated effect of his failure to act, upon a notice to make repairs, was to subject his property to assessment to reimburse the city for its outlay in making the repairs itself. The plaintiff, in his motion, refers particularly to two cases as contrary to the conclusion reached by this court: one of them (Delaware, L. & W. R. Co. v. Madden, 241 Fed. 808), as was said in the original opinion, was based on an ordinance specifically making abutting owners liable for injuries due to their neglect to make repairs; the other (Mullins v. Siegel-Cooper Co., 183 N. Y. 129), held an abutting owner liable for the unsafe condition of a walk created by an independent contractor because the situation was such that the contractor was to be deemed in effect his agent. That the prevailing rule is followed in New York is shown by City of Rochester v. Campbell et al., 123 N. Y. 405, where, under an ordinance quite similar to that here involved, the court held that the lot owner was liable neither to the person injured, nor to the city after it had paid his claim. In the original opinion it was said that there was no allegation or proof that the teams which were driven across the walk, causing the defect complained of, belonged to or were controlled by the defendant. The correctness of this statement is challenged, on the ground that the petition alleged, and evi dence was given in support of the allegation, that the defendant permitted and consented to the teams of the oil company being driven over the walk. The distinction between an affirmative act of the defendant and an act of another which it failed to prevent was what the court had in mind, and the statement still appears to it to be correct. The motion for a rehearing is denied.	[ -16, 120, -44, -18, 91, 96, 26, -40, 89, -79, -89, 95, -83, -55, 29, 35, -9, 127, -47, 51, -11, -30, 70, -118, -46, -45, -13, 69, -78, 93, 100, 126, 76, 49, -54, -43, 102, -61, 77, -38, -118, -89, 10, 109, -39, 65, 48, 123, 20, 15, 81, -97, -77, 42, 24, -57, 44, 44, 123, 33, -48, -8, -119, 5, 123, 5, 53, 102, -100, -89, -38, 8, -104, 57, 8, -24, 115, -76, -105, -12, 77, -103, 9, -26, 99, 0, 13, -25, -102, -104, 14, -46, -115, -90, -111, 56, 57, 45, -65, -41, 69, 6, 36, 126, -10, 29, 91, 44, 11, -113, -10, -15, -17, -12, -106, -123, -49, 7, 48, 96, -50, -72, 92, -29, 87, -109, -97, -36 ]
The opinion of the court was delivered by West, J.: The plaintiff sued to have a certain deed declared a mortgage, and for an accounting by the grantee. The defendant admitted the execution of the deed and the accompany ing contract, and alleged that he had purchased the land subject to two mortgages, one of which he had paid off, and had paid the interest on the other, and also subj ect to taxes on the land and money for certain improvements thereon, and further alleged that when the deed was executed the plaintiffs owed him certain sums which were canceled by the conveyance. The deed covering about 38 acres of land recited a consideration of $5,000, and warranted the title in the grantors, except mortgages for $2,650 and $1,500, “which grantee assumes as part of purchase price.” There was also a contract executed and acknowledged by the plaintiffs, which recited that the latter had sold and conveyed by warranty deed the land in question, and that the consideration was the assumption of the two mortgages already referred to, and the cancellation of certain indebtedness owed to the grantee, after which came the following: “Therefore as a separate and subsequent agreement this option to purchase is given and contract made and it is agreed that first party will sell and convey to either Anna Frankovich or Michael Frankovich the land above described and they are given the option to purchase the same at any time within one year from date hereof by paying the first party, his heirs or assigns, a sum equal to the full amounts paid for said land by first party as aforesaid, together with all other money expended by him on said land hereafter, including taxes, improvements, interest on any mortgage, indebtedness that may be paid, together with 8 per cent per annum, interest on said sums and the assumption by second party or either of them of any unpaid indebtedness on mortgages aforesaid of record or any tax liens or indebtedness.” Also, “It is also expressly understood between the parties hereto that the deed heretofore made and given by second parties hereto to first party, was intended as an absolute conveyance in fee simple and'in no wise as security for debt.” The case was tried by the court. The issues were found in favor of the plaintiffs, and the defendant was adjudged to be indebted to them in the sum of $1,000. The defendant appeals, and insists that the deed was not a mortgage, and that, in any event, the judgment against him is excessive. Counsel have presented able and admirable arguments and briefs in support of their contentions. We regard the transaction between the parties as one in which the plaintiffs conveyed the land to the defendant in satisfaction of what they owed him, he to pay the existing mortgages on the land, with the privilege on the part of the plaintiffs to repurchase the land within the time and on the terms fixed by the accompanying contract. (McNamara v. Culver, 22 Kan. 661; Yost v. Bank, 66 Kan. 605, 72 Pac. 209; Martin v. Allen, 67 Kan. 758, 74 Pac. 249; Root v. Wear, 98 Kan. 234, 157 Pac. 1181.) The defendant testified that he was to hold the land for a certain length of time, so that if they wanted to redeem it they could, but that Mrs. Frankovich told him to trade it or sell it, that she would never move back to Wathena, and to do whatever he liked with the place;' and that he traded it. Mr. Dubach, a friend of the plaintiffs’ who seems to have had much to do with the arrangement between the parties, testified that before the end of the first year he saw the defendant, who told him that he had collected the rent and applied it to his claim and the payment of the interest on the mortgage; that he, Dubach, told the defendant that the plaintiffs wanted the time extended for another year, and that if the defendant did not want to do that the witness would pay him his money and let him convey the land back to the plaintiffs, and the witness would make his arrangements with them to secure the money; that the defendant said he thought he would have a sale for the land about the first of March, and would rather leave it as it was, as 'he did not have the exact amounts figured up; and that he again saw the defendant about a settlement, and was asked by him, if he, Dubach, was willing to take the place for the Frankovichs and pay him his money, but that they did not come to any agreement. Mrs. Frankovich testified that the defendant said if she would deed'the land to him she could buy . it back inside of a year; that she did not take any interest in the contract in which he agreed to sell them back the land; that after more than a year the defendant talked to her about trading the land for a restaurant, but she told him Mr. Dubach would look after it; that when she was talking to him about giving him a deed to secure him, she told him to try to sell the place, “that we didn’t want it”; that after the deed had been made some time, she told him to sell the place, and he said he would do his best to sell it; and that she knew she had to exercise her option within a year, but did not make any offer to do so within that tipie. She testified that shortly after the deed was made the defendant mailed her something which she threw in the fire, and she did not know whether it contained the notes she had given him or not; and when asked why she thought the package was the notes, she said,'“I just thought it was those notes.” The defendant testified that he traded the land for some. St. Joseph property, and something like $1,600'to boot; that he took the property at $600; and that his grantee paid one mortgage, and he, the defendant, paid the other, which was for $1,500. Mr. Dubach testified that the landlord’s share of the fruit from the tenant on the farm for 1915 and 1916 should have been from $800 to $900. The defendant claimed to have received $150 or $175 the first year, but kept no record the second year. There was testimony that the land was worth $6,000, although the defendant .claimed it was only worth about $125 an acre. There is nothing in all the testimony, except a slipshod course of dealing, to indicate that the Frankovich’s had any purpose or desire to purchase back the land within a year, and they seem to have taken very little interest in the affair after the conveyance was made. The package which evidently contained the notes owing by them to* the defendants was burned. It does appear that Mr. Dubach wanted to save something for them, and that the defendant for some time talked as if 'he might, if they should make a settlement or he should make a sale, allow them something. ■ But the land was his, and their legal right to buy back Was not exercised within the time covered by the contract. Their indebtedness had been paid, the mortgages on the land had been taken care of, and it is difficult to see op what theory they can hold the defendant liable for any profit he may have made on the land after holding it something like two years. The deed and the contract clearly evidence the contract on which the minds of the parties met, and nothing occurred subsequently to destroy its binding force. (Elston v. Chamberlain, 41 Kan. 354, 21 Pac. 259.) The judgment is reversed, and the cause is remanded with directions to enter judgment for the defendant.	[ -13, 110, -107, 108, -54, -32, 42, -104, 105, -96, -74, 91, -1, -62, 4, 33, -28, 105, 64, 106, 87, -78, 39, 35, -46, -77, -45, 77, -75, -52, -12, 87, 76, 32, -62, 21, 102, -62, -55, 80, 14, -57, -117, 68, -39, 66, 48, 27, 0, 73, 113, -117, -13, 44, 61, 67, 40, 40, 107, 57, -112, -8, -81, -123, 91, 3, -111, 37, -4, 67, -54, 10, -112, 113, 0, -56, 95, -74, -106, 116, 9, 27, 8, 38, 102, 16, 101, 127, -8, -104, 46, -1, 13, -90, -46, 88, 11, 106, -66, -97, 100, 0, 7, -10, -20, 12, 29, 108, 23, -21, -42, -109, -113, 62, -119, -62, -9, 11, 48, 97, -49, -94, 92, 99, 61, -101, 15, -37 ]
The opinion of the court was'delivered by Marshall, J.: The plaintiff appeals from a judgment divorcing her from the defendant and giving her a house and lot in Salina as alimony. Her complaint is that she was not awarded sufficient property. -She -says that, on account of the expense, she is unable to furnish an abstract that sets out the testimony fully, or in narrative form. She requests that the transcript of the evidence be read. That has been done. The plaintiff does not argue any principle of law on which the judgment can be reversed. The court made special findings of fact as follows: “1. Plaintiff and defendant were married April 7th, 1907, at Davenport, Nebraska, after an acquaintance of about two years. At the time of the marriage plaintiff was a widow and had a son about two years of age. Plaintiff and defendant were twenty-six years and forty years old, respectively. “2. At the time of said marriage defendant had -in bank about $7,900.00, and there was due him on account of labor performed and certain personal property sold the sum of $1,000.00.' Plaintiff had nothing. “3. Shortly after the marriage the parties went to make their home with defendant’s brothers and sisters on a farm which belonged to the estate of defendant’s deceased parents. While living on said farm and with defendant’s- said relations, plaintiff did practically all the house, work. -This arrangement proved unsatisfactory and was of short duration, and plaintiff and defendant went to Beatrice to live. There defendant purchased a residence property for $800.00. “4. The parties lived in Beatrice about a year and a half, during a part of which time defendant was employed as a mill hand and part of the time as a carpenter. He also had relations there with the board of trade and thereby lost between $1,400.00 and $2,000.00. “5. Early in 1909 defendant bought an unimproved farm of 320 acres in Rooks county, Kansas, and shortly thereafter the parties took up their residence on said farm. The consideration for the farm.was $8,000.00 of which sum $5,000.00 was paid down and $1,500.00 in the fall of 1909. There was a mortgage back on the farm for $1,500.00. Upon this farm defendant erected a barn at a cost of $400.00 and other out-buildings at a cost of $125.00. He also erected, a dwelling house the material for which cost $800.00. A considerable portion of the labor performed in the erection of said house was performed by the defendant and' plaintiff. Plaintiff also did considerable farm work, such as plowing, loading and hauling hay, in addition to her household duties. The labor performed by plaintiff, other than her husehold duties, was performed by her on account of the urgent request of the defendant. Defendant was himself a very industrious man and at times assisted plaintiff with her household work. “6. Tiring of farm life, the parties in 1913 leased the said farm to a tenant and moved to Salina. During the summer of said year defendant purchased a small grocery on Seventh street in said Salina, paying for the same the sum of $1,100.00. Urged by defendant, plaintiff, in addition to doing her house work, assisted in running this store. “7. Feeling that it was an unjust exaction on the part of defendant to require her to labor in the said store in addition to attending to her household duties, plaintiff, on the--day of-, 1914, informed defendant that she would no longer perform such services and would in the future only look after her house work; Shortly thereafter plaintiff filed a suit for divorce against .defendant, but her petition was denied, and thereafter proposals were made by plaintiff and defendant to each other as to terms upon which they might again live together as husband and wife. All efforts to bring about a reconciliation proved fruitless, and the parties have since lived apart from each other, the defendant contributing toward plaintiff’s support the monthly sum of $-, up to the-day of-, 1917, and thereafter the sum of $-per month up to the filing of the present action, since which time he has contributed nothing. Plaintiff has meanwhile occupied the residence property of the parties in Salina, and has appropriated to her own use the rents received from the lodgers occupying certain rooms in said house. “8. By reason of plaintiff’s being required to do work on the farm usually done by men and to work in the grocery store as aforesaid, there has been engendered a deep-seated dislike and antipathy on the part of plaintiff for defendant, and the ends of matrimony have been defeated and the parties can never again live together happily as husband and wife. “9. Defendant is the owner at present of the aforesaid Rooks county farm. The value of said farm is about $9,000.00. There is an incumbrance of $1,500.00 on said farm. Defendant also owns a residence property in the city of Salina on Tenth street. This property is worth about $2,000.00 and is incumbered with a mortgage of $800.00. The personal property owned by defendant is worth little over and above the mortgage thereon.” On these findings of fact, the court made the following conclusions of law: “1. Plaintiff is entitled to a divorce from the defendant on the ground of extreme cruelty. ' “2. Plaintiff should be awarded by way of permanent alimony the Salina residence property, and the household furniture now in her possession, the defendant to be the owner in his own right free from any claim whatever on the part of plaintiff, of all other property owned by him at this time, both real and personal and wherever the same may be situate.” The plaintiff requested the court to make additional findings of fact, but that request was denied. In Miller v. Miller, 97 Kan. 704, 156 Pac. 695, this court said: “Before a. judgment awarding alimony will be reversed it must appear by all the circumstances surrounding the parties to the action that the trial court abused its discretion in determining the amount.” (syl.) (See, also, Danielson v. Danielson, 99 Kan. 222, 161 Pac. 623, and Corbett v. Corbett, 101 Kan. 1, 4, 165 Pac. 498.) After a careful examination of the transcript of the evidence, and after a careful consideration of all that has been said by the plaintiff, the court is compelled to say that it does not appear that the trial court abused fits discretion in determining the amount of alimony to be given to the plaintiff. This conclusion would not be changed even if the court had made the findings of fact requested by the plaintiff. The defendant filed a cross appeal and has argued one proposition that appears to be meritorious, but the concluding paragraph of his brief is as follows: “We therefore respectfully submit to the court that the decree for alimony should not be modified. If, however, the decree for alimony is set aside, we think that the entire decree, including that for divorce, should be set aside.” This statement by the defendant cannot be considered other than as a conditional abandonment of his appeal. The judgment for alimony is not reversed. The defendant, therefore, abandons his appeal, and the judgment is affirmed.	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The opinion of the court was delivered by Porter, J.: The action was for the recovery of usurious interest. Plaintiff owned a large tract of land in Edwards county upon which defendant held mortgages securing notes past due, to the amount of $97,500. They entered into negotiations for an extension of the loan, and it was agreed that plaintiff should execute renewal notes and mortgages for $100,-000, bearing interest at 10 per cent; $2,500 of the amount to-constitute a bonus to defendant for extending the loan. This agreement was carried out, and subsequently plaintiff paid the loan-with interest in full, the last installment being paid October 14, 1916. The petition, which was filed December 6, 1916; set up a cause of action for money had and received from plaintiff without consideration. A demurrer to the petition was overruled, and defendant answered, admitting that the amount plaintiff owed was less than the face of the notes and mortgages, but alleging that plaintiff offered to pay the additional sum in order to obtain the privilege of separately paying the several notes and mortgages and obtaining releases of the mortgage liens on portions of the lands, and as a consideration for the renewal of the loan. It alleged that plaintiff was greatly benefited by the arrangement; that prior to the renewal he was unable to pay the indebtedness, and unable to sell such a large tract of land to any one person, or to sell any portion of the land without paying the entire debt, which he was not able to do; that by dividing the loan and the time of payment, the defendant suffered the inconvenience and expense of recording several different mortgages, instead of one, and the possible expense and trouble of having to begin a number of foreclosures in order to collect the amount; and that the entire $100,000 and interest thereon was freely and voluntarily paid by the plaintiff without objection or protest. To this answer the plaintiff filed a demurrer, which the court sustained. The defendant elected to stand upon the answer, and judgment was thereupon rendered against him for the sum of $3,465.72, from which he appeals. The main question for determination is whether a borrower of money has, in this state, the common-law right of action to recover back usurious interest which he has voluntarily paid. The defendant makes the preliminary contention that the bonus or commission collected from the plaintiff was not, in fact, usurious, and insists that the case of Lynn v. McCue, 94 Kan. 761, 147 Pac. 808, decides that where a bonus is charged as a commission for making a loan, the transaction is not usurious. The point decided was the reverse of what the defendant contends. The case was one where three parties were concerned in the transaction, a bank, a trust company, and the borrower. There was- a conflict in the testimony as to whether the trust company was merely the agent of ,the bank, or really loaned its own money. It was said in the opinion: “But if the various steps taken were a mere cover — if the trust company was the agent of the bank, or if the trust company really loaned its own money . . . then the transaction was usurious.” (p. 773.) The facts admitted by the answer in the present case show that the lender took the excess, and that the transaction was usurious. (Jenness v. Cutler, 12 Kan. 500, 513.) The defendant contends that the principle of law that a party to an illegal contract will not be permitted to come into a court of law or equity;and ask to have his illegal objects carried out, applies, because the borrower who pays excessive interest violates the law and is in pari delicto with the lender; and that before the plaintiff can state his case, he must necessarily disclose that the contract to which he was a party had an illegal purpose, and therefore the courts will leave both himself and the defendant in the situation in which they find themselves. The question whether one who has paid excessive interest may recover the excess in an action for money had and received, has never been before this court. It is one upon which great contrariety of opinion has prevailed among the American courts. Some of the apparent conflict can readily be accounted for by differences in the statutes of usury; some of the real conflict can only be explained by the different views adopted by the courts as to the effect of the statutory provisions. It is remarkable, however, that very many of the earlier, and some of the modern, decisions support the contention urged by the defendant in the present case, and deny the right to recover the excess, upon the ground that the parties are in pari delicto; some of them making use of this doctrine of the law as a basis for declaring the payments to have been voluntary. Before considering the decisions which turn upon differences in the statutes of usury, we shall attempt to demonstrate that the theory that the parties are in equal wrong, although supported by numerous decisions, is opposed not only to sound reason, but also to the weight of authority. From the earliest times the term “usury” was synonymous with the ferm “interest,” and meant the taking of any compensation whatever for the use of money. For long centuries men who loaned money on interest were considered as felons of the law. By the laws of Moses, the Jews were prohibited from taking interest from one of their own race, but were permitted to exact interest from a stranger. The Jew made the most of the exception, and his race became the bankers of the world. With the persistence of his race, the Jew continued to' follow the trade of lending money, ¡ driven from one country to another, despised, persecuted, and despoiled, and found in the requirements of needy merchants and impecunious princes opportunities for carrying on his business. “Anciently it was holden to be absolutely unlawful for a Christian to take any kind of usury, and that whoever was guilty of it was liable to be punished by the censures of the church in his life time; and that if after death anyone was found to have been a usurer while living, all his chattels were forfeited to the king, and his lands escheated to the lord of the fee.” (10 Bacon’s Abrid. Title, “Usury.”) In the twelfth century it was decreed in one of the councils of the church that impenitent money lenders should be excluded from absolution in the hour of death, and from Christian burial. In the same century ordinances of the church were leveled against the Jews, which despoiled them of their goods, drove them from the country, and freed their debtors. The Protestants were as bitter against usury as the Church, of Rome. Martin Luther declared that every usurer was a thief and worthy of the gibbet. Under Henry VII a law was passed which made the taking of any interest a criminal offense. It imposed a fine of one hundred pounds, besides the annulment of the loan, and in addition, the statute provided that after the civil courts were through with the offenders, the church should still have jurisdiction, and reserved to the church, notwithstanding this punishment, “the correction of their souls according to the laws of the same.” In those countries which came under the influence of the Anglo-Saxon mind we find the first distinction between usury and reasonable interest. The “Bill of Usury” of Edward VI was enacted in 1552; a fragment of it reads as follows: “Forasmuch as usury is by the word of God utterly prohibited as a vice most odious and detestable, as in divers places of the Holy Scriptures, it is evident to be seen, which thing by no Godly teachings and persuasions can sink into the hearts of divers greedy, uncharitable and covetous persons of this realm, nor yet, by any terrible threatenings of God’s wrath and vengeance, etc.,” it is enacted, that “whosoever shall thereafter lend money for any manner of usury, increase, lucre, gain, or interest, to be had, received or hoped for, shall forfeit principal and interest and suffer imprisonment and fine at the king’s pleasure.” In Protestant Holland sound reason gained some headway against the absurd prejudice, and the great law writer, Hugo Grotius, rendered able assistance to the cause of science and truth by his reasoning upon the subject. At a time when bankers were excluded from the communion table in the Dutch Church, Grotius, in his celebrated work, De Jure Belli et Pads, (which the late Ambassador White said, “has wrought more benefit to humanity than any other attributed to human authorship,’’) declared the prohibition of interest to be Scriptural, but combated the doctrine of Aristotle, and favored the allowance of interest on practical grounds. (Lib. 2, Cap. XII, par. 20, cited in note to “Theology and Political Economy” by Andrew D. White, Pop. Sc. Monthly, vol. 40, 323, 333.) One of the early Protestant leaders to recognize the distinction between usury and reasonably interest was John Calvin. Jeremy Bentham, too, in his “Defense of Usury,” Letter X, argued the matter upon common-sense principles, and took a decided stand against the old doctrines. Gradually bigotry and superstition began to give way to the requirements of trade and business. The conflict between the necessities of business and trade on the one hand, and superstition and prejudice on the other, had been evident for centuries. One of- the most interesting curiosities of the history of this struggle is, that at a period as early as the 15th century, some of the Fathers of the Church, realizing that the struggling commerce of the times, as well as the natural laws of trade, demanded the extension of the credit system, and the employment of capital, and that interest was- gradually becoming a virtual necessity, advanced the peculiar doctrine that Jews might be allowed to take interest, since they were to be damned in any case, and by giving them a monopoly of the business, ,the souls of Christians might not be lost. (Liegois, Histoire de VTJsure, p. 82.) The doctrine announced by Calvin, that the true meaning of usury was illegal or oppressive interest, began to be accepted in England and in most Protestant countries during the reign of Elizabeth. In his article published in the Popular Science Monthly, to which we have already referred, Mr. White points out that it was not until late in the 19th century that social science as applied to political economy, gained a victory final and complete in respect to interest; and that as late as 1873, there “appeared a book published under authority' from the Holy See, allowing the-faithful to take moderate interest under condition that any future decisions of the Pope should be implicitly obeyed.” 8 It is worthy of note that from the time when no distinction was recognized between usury and interest, the ecclesiastical law, and later, the statutes and the common law of England, paid no attention whatever to the attitude of the borrower. He was not regarded as a delict, or particeps criminis. It was against the greed and oppression of the lender alone that the church leveled its decrees. He alone of the parties to the transaction was excluded from the altar, denied absolution in. the hour of death, and a Christian burial after-death. Neither in the statute of Edward VI (1552), which forfeited the principal and interest and authorized the fine and imprisonment of the lender, nor in any subsequent English statute against usury, will there be found language reflecting upon the conduct of the borrower, or imposing penalties upon him. In this connection the history of our own statute has peculiar significance. The first interest statute in Kansas was adopted by the territorial legislature of 1860 and made interest in excess of 20 per cent, by contract, -usurious. The statute contained also the express declaration, “nor shall any debtor be deemed a particeps criminis, on account of having paid or having agreed to pay such usurious interest or such inducement, but shall have like remedy and relief in either case” (whether the excess had been paid in advance or not). (Laws 1860, ch. 75, § 3.) The statute of 1863 contained the same provision (Laws 1863, ch. 33, § 3) and in the revision of 1868 it was declared that the debtor should not be deemed “in equal wrong.” (Gen. Stat. 1868, ch. 51, § 3.) This declaration remained in the statute until 1872 (Laws 1872, ch. 134, § 2), when it was omitted for the first time. It will hardly be contended that the omission of this legislative declaration in subsequent statutes manifests an intention to alter the public policy or to change the status of the parties to a contract which is usurious'. Moreover, it is clear that there is no force in any argument based upon the doctrine that the parties are in equal wrong, because the only penalties and forfeitures imposed by the statute are for the benefit of the borrower. In Mason v. McLeod, 57 Kan. 105, 45 Pac. 76, and in Nyhart v. Kubach, 76 Kan. 154, 90 Pac. 796, the purchaser of a patent right sold in violation of the provisions of the statute was permitted to recover the consideration because the statute was passed for the protection of the one who purchases,‘and he is not in equal wrong; but in Ridgway v. Wetterhold, 96 Kan. 736, 153 Pac. 490, it was held that,-so far as the seller of the patent right is concerned, the contract is tainted with illegality, and no action can be maintained by him to enforce any part of the contract. In Webb on Usury, section 460, it is said: It is observable that the reasoning which relieves the payer of the character of partieeps eriminis, also takes his payment out of the operation of the rule relative to voluntary payments. No payment obtained through oppression or undue advantage is voluntary, and the law presumes every payment made to. a person who is by statute forbidden to receive it, where the statute is for the protection of the payer, as made through oppression and undue advantage.” In 6 Ruling Case Law, page 834, it is said: “The lender is never allowed to take advantage of the statute, because-he is the guilty party; the borrower may do so, because he is not a partieeps eriminis. He is regarded as the victim of the usurer, and not in pari delicto.” In Tyler on Usury, page 421, it is said: “A party who has paid excessive interest may, at commón law, recover the excess, in an action for money had and received. The law considers the borrower, rather as a victim than an aggressor. Statutes are passed prohibiting usury, in order to protect needy and necessitous persons from the oppression of usurers, who are eager to take advantage of the distresses of others, and who violate the law only to complete their ruin. At least, this is the theory on which these enactments are made.” (See, also, 9 Cyc. 553.) In 39 Cyc., page 1030, it is said: “The common-law doctrine which has been adopted by many of the American courts is that the debtor may recover payments made upon a loan in excess of the legal rate of interest. According to this doctrine such payments are not deemed voluntary, nor the debtor to be in pari delicto in making them. Hence, an action lies to recover such usurious excess from the creditor who ought not in equity and good conscience to retain more than his principal and lawful interest thereon. It is held in these states that other remedies given by statute do not supplant the common-law right, but are cumulative merely.” Some of the American cases in which the courts have refused to allow a party who has paid'' usurious interest to recover it back by action, on the ground that the payments were voluntary and the debtor “in pari delicto with the creditor” are cited in the note in 39 Gyc., page 1032. A far more difficult question to be determined is, whether our statute of usury, which imposes certain penalties and forfeitures upon the creditor, and gives to the debtor the benefit of thepi, has abrogated the right which the courts have quite generally denominated the common-law right, to recover the excess in an action for money had and received. In strictness, no such right existed at the common-law until there was some statute which fixed the legal rate of interest, and condemned usury. Upon this question the American courts are hopelessly at variance. The authorities on both sides are cited in a note on the “Right, in the absence of a statutory provision therefor, to maintain an action to recover back usurious payments” (L. R. A. 1918B, 585-595), in which the author states that the conflict “is due in a considerable degree to differences in the usury statutes relating to the consequences and effects of usury. The tendency is to permit such recovery where the statute declares the contract void in whole or in part, or punishes a violation of its provisions by the infliction of fines, penalties, or forfeitures, upon the person who takes it, but to deny such recovery if the statute merely prevents the recovery of the usurious excess, or of any interest at all, and otherwise attaches no pains or penalties to the reservation or exaction of usury.” (p. 585.) The author further says— “By the weight of authority, both in this country and in England, an action at common law, in the nature of an action for money had and received, will lie for the recovery back of usurious! payments; ht least, where the statute in relation to usury declares usurious contracts void in whole or in part.” (p. 585.) • “By the weight of authority the common-law remedy of assumpsit to recover back payments of usury is not abrogated by statutes providing other remedies for the recovery of such payments or for the recovery of penalties and forfeitures.” (22 Encyc. PI. and Pr. 482.) In Brown v. McIntosh, 39 N. J. L. 22, it was argued that the statute provided a method of redress for a party who agreed to pay, or who had paid, an excessive rate of interest, and his remedy was to interpose his' defense when sued on the notes, and that, by implication, the statute defeats the common-law remedy for money once paid. Commenting upon this contention, the court said: “It is equally clear that the design of the act is now, as ever, to protect the borrowers. All the reasons for allowing this action still subsist. On common-law principles the remedy still remains, unless taken away by the second section of the act. (Wheaton v. Hibbard, 20 Johns. 290.) It does not do this by express words. Nor is there any implication that the action is by legislative intent abolished.” (p. 27.) In a note in 39 Cyc., page 1033, it is said: “The New York courts have been uncertain whether such statutory remedy was exclusive of that given at common law.” In view of the wide diversity of opinion upon the precise question, it is not worth while to review the authorities without a careful examination of the statutory provisions involved in each case, because that would be necessary in order to determine where the actual weight of authority rests. Besides, it is only by considering the purpose and effect of our own statute that the correct solution of the question can be arrived at. Our earliest statute of usury authorized an action to recover the excessive interest, but only in the particular instance where “any part of that which purports to be the principal . . . has been added by way of usurious interest, and with the intent to evade the provisions of this act.” (Laws 1860, ch. 75, § 4.) There was no general provision for recovering back usurious payments, however; the provision applied only where the interest had been added to the principal for the purpose of evading the law. In 1863 (ch. 33) the act was amended and this provision was stricken out. If the provision in the act of 1860 had been a general one authorizing the debtor in all cases to maintain an action to recover back usurious interest. paid, there would arise the question as to the effect of the subsequent repeal of the provision. Some of the courts, for instance, have held that the. repeal of a statute giving the right to recover the usury paid leaves the common-law right unimpaired (Harper v. Building Association, 55 W. Va. 149), and in some states the courts have gone to tlie extent of declaring that the right to recover the usurious excess may be prosecuted after the statutory right is barred. (Porter v. Mount, 41 Barb. [N. Y.] 561; Wood v. Lake, 13 Wis. 84; Berry v. Makepeace, 3 Ind. 154.) In 1865, Indiana had a statute' prohibiting the recovery of usury voluntarily paid, but in 1879 the act was repealed, and it was held that the repeal revived the common-law rule, as the statute was merely declaratory of the common-law. (Baum et al. v. Thoms, 150 Ind. 378.) We do not attach very much importance to the fact that the statute of 1860 authorized an action to be brought, because, as already observed, the right was expressly limited to a particular situation. The revision of the statute in 1868 authorized the parties to stipulate for interest .not exceeding 12 per cent. (Gen. Stat. 1868, ch. 51, § 2.) All payments by way of usurious interest, or of inducement to contract for more than 12 per cent per annum, it was declared, “shall be deemed and taken to be payments made on account of the principal; and the courts shall render judgment for no greater sum than the balance found due after deducting the payments of money or property made as aforesaid, without interest.” (Gen. Stat. 1868, ch. 51, § 3.) The act was amended in 1872 and all restrictions as to the rate of interest in a written contract were repealed. The parties were permitted to contract in writing for interest at any rate they saw fit, “provided, that no person shall recover in any court more than twelve per cent interest thereon per annum.” (Laws 1872, ch. 134, § 1; Day v. Walker, 16 Kan. 326, 330.) The statute as it now reads was enacted in 1889, with the provision that any person contracting for a greater rate of interest than 10 per cent shall forfeit all interest so contracted for in excess of such rate, and in addition thereto shall forfeit a sum of money equal to the excessive rate. This was the first time the statute provided for forfeiting double the amount of the excessive interest. The statute also contains a provision that a bona fide endorsee of negotiable paper purchased before due shall not be affected by any usury exacted by any former holder, unless he shall have actual notice of the usury previous to his purchase, with the further provision that double the amount of such excess incorporated into negotiable paper “may in such cases, after payment, be recovered back by action against the party originally exacting the usury,” but such action is required to be brought within ninety days from the . maturity of such paper.- (Gen. Stat. 1915, § 5483.) It must be obvious that as the law stood in 1872, no common-law right to maintain an action to recover excessive interest existed in this state (Day v. Walker, supra), because there was nothing declaring it unlawful for the parties to contract in writing for the payment of any rate of interest. There was merely the prohibition against courts lending their aid to enforce the contract for more than 12 per cent interest per annum. No cause of action is expressly given under the present statute to recover back from the original payee usurious interest; the borrower is given the right to set up the defense in an action on the instrument, in which case double the amount of the excess interest is to be deducted from the amount lawfully due. The fact that the legislature was careful to provide a cause of action against the original payee where the payments have been made to a bona fide indorsee, indicates, we think, an intention to leave the borrower to the sole remedy of refusing to pay, and when sued upon the instrument, the right of setting up the defense of usury. The statute, we think, must be construed as intended to cover the whole subject of interest and usury, and to define the rights of the parties. It imposes a penalty upon the lender by forfeiting double the amount of the excess charge-contracted for, if the borrower see fit to plead the defense; it permits the latter, however, to pay the interest rate, if he is willing, but makes no provision for a direct action to recover back payments made, except in the one case where the borrower has been compelled to pay usurious interest to an innocent holder of the paper, and has been deprived of the right to set up the defense. By these provisions the statute recognizes that the parties are not in pari delicto; but, notwithstanding this, the manifest purpose of the legislature must have been to abrogate the common-law remedy. In one respect, at least, the statutory remedy is broader than the common-law remedy. The statutory remedy permits the debtor to plead the usury and recover by a set-off double the amount of such excess. In those jurisdictions where the common-law doctrine has been adopted, the amount of the recovery is necessarily limited to the excess over the lawful interest (10 Cyc. 1033), which is all that is recoverable, and is all the plaintiff in this case seeks to recover. We have already referred to the fact that much learning has been expended by the courts in determining whether the parties to a usurious contract are in equal' wrong; and the fact that they are not in equal wrong has been used mostly for the purpose of furnishing a basis for declaring that usurious payments made were not voluntary. In our opinion, this by no means follows. Our statute undoubtedly recognizes that the parties are not in pari delicto, because the statute was enacted for the protection of the debtor; but the statute does recognize that the debtor may voluntarily pay the excessive interest, refuse to plead usury as a defense, and the transaction shall not be void. The contract for the excessive interest is made voidable at the election of the debtor, until he has voluntarily paid it. When the statute was enacted it was obviously designed to cover the entire subject of usury, including the penalties to be'imposed upon the creditor for exacting it, as well as the remedies by which the debtor may protect himself from the creditor’s oppression and obtain the benefits of the forfeitures and penalties imposed solely for his own benefit. “The common law is impliedly repealed by a statute which is inconsistent therewith, or which undertakes to revise and cover the whole subject-matter.” (8 Cyc. 376.) The contrary rule obtains if there is no repugnancy between the common-law and the statute, and it does not appear that the legislature intended to cover the whole subject. (Courtney v. Staudenmayer, 56 Kan. 392, 43 Pac. 758.) There is another reason why this construction should be placed upon the provisions of our statute.' In the present case the $2,500 bonus undoubtedly comes within the definition of an involuntary payment. It was exacted because of the oppression of the creditor, and the plaintiff’s necessities required him to pay this sum in order to obtain an extension of the loan; but when the last payment upon the indebtedness became due, the plaintiff could have withheld that sum from the stipulated amount, if he had desired. He paid it without any cornpul sion. The debt had matured; payment gave him no further extension. The only possible inconvenience he could have suffered by refusing payment then, was of defending an action brought by the creditor to recover the excess, and to such an action the statute gave him a perfect defense. Moreover, after paying all that was justly due, he could have maintained a suit to enjoin the collection of the usurious interest. (Waite v. Ballou, 19 Kan. 601.) Payment, therefore, at a time when he was under no possible compulsion, can only be regarded as a voluntary one. As said in the opinion in Kelly v. Miami County, 85 Kan. 38, 46, 116 Pac. 477: “ ‘The law does not give him the right to pay a demand for which he knows he is not legally liable and then give him a right of action to recover his payment back.’ (63 Kan. 343.)” For two reasons the plaintiff cannot maintain the action— the provisions of the statute have abrogated any common-law right that may be said to have existed authorizing such an action, and besides, he cannot recover the excessive interest, because its payment was wholly voluntary. The judgment is reversed, and the cause is remanded with directions to render judgment in defendant’s favor for costs.	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The opinion of the court was delivered by Johnston, C. J.: This was an action to recover on a promissory note executed by the defendant in favor of the plaintiff bank, which the defendant alleged was procured by the fradulent representations of the plaintiff, was without consideration, and given merely as an accommodation to the plaintiff. This is the third time the case has been brought up for our consideration. At the trial the jury returned a verdict for the defendant, and with it answers to special questions. The court set aside the verdict and gave judgment on the special findings in favor of the plaintiff. On the first appeal it was held that there was no inconsistency between the special findings and the general verdict, hence judgment was reversed with directions to enter judgment in favor of the defendant. (Bank v. Stroup, 100 Kan. 17, 164 Pac. 1054). On a petition for a rehearing the fact that a motion for á new trial had been filed and left undetermined was brought to the attention of the court, and accordingly the former, judgment of this court was modified, and the case was remanded for consideration of the motion for a new trial, and for further proceedings. (Bank v. Stroup, 100 Kan. 444, 164 Pac. 1054, 1057.) Subsequently the motion for new trial was taken up and overruled by the trial court, and from a judgment for defendant the present appeal is taken. Errors are assigned on rulings as to the admission of evidence, on instructions of the court, and as to the sufficiency of the evidence, but most of the contentions of the plaintiff were involved in, and decided by, the court in the former opinions. The issues in the case were fully set out in those opinions, and therefore it is not necessary to restate them here, nor are we warranted in the reconsideration of the questions that have already been determined. It is first contended that a new trial should have been granted because of the admission of testimony as to the fraudulent representations of Lynn, the cashier of the bank at the time the original note was given to the construction company. It is said that nothing testified to by Lynn is binding on either the bank or the construction company, as it was not shown that the bank had any interest in the transaction, nor that Lynn represented the construction company. There was testimony to the effect that a close relationship existed between the bank and the construction company. The bank appeared to be financing the company, to the extent of carrying its indebtedness, and its officers acted for the construction company in obtaining the note from the defendant. Fraud in procuring the execution of the paper is a good defense. It was competent for the defendant to show the circumstances and preliminary steps in the transaction and the participation of the bank officers in it, and also that the note was executed for accommodation. On the first appeal it was decided that— “If as a matter of fact the note given on October 15, 1909, was intended as an extension of time on the note maturing on that day, was procured by false statements concerning the construction company’s finances, etc., and the successive renewals were procured by repetitions of those statements, the defendant was not liable.” (Bank v. Stroup, 100 Kan. 17, 20.) It is further contended that the oral testimony of the things said and done by the officers of the bank for the purpose of showing fraud, a lack of consideration for the note, and that it was not to be enforced as an actual obligation, operated to vary and contradict the note and should have been excluded. As between the immediate parties, it was competent to show the purpose for which the note was given, that it was executed merely for accommodation, and was without consideration. This testimony may be received without trenching on the rule that oral evidence cannot be used to vary the terms of a written contract. That a note was executed for accommodation may always be set up as a defense against an action by the party accommodated. (Bank v. Stroup, 100 Kan. 17, 164 Pac. 1054; Rice v. Rice, 101 Kan. 20, 165 Pac. 799; 8 C. J. 259.) The contention that the evidence was insufficient to uphold the findings and verdict cannot be sustained. The evidence supported the defense of fraud, as it tended to show that the officers of the bank represented to the defendant that the construction company had sufficient assets to meet its obligations; that the bank had bonds and reliable securities of the company in its possession sufficient to care for all its obligations ; and that, therefore, the defendant would never be called upon to pay the original or any of the subsequent notes which he was induced to execute. The evidence tends to show that the statements were false; that the defendant signed the note in reliance upon the statements; and that their falsity was hot discovered by the defendant until after the execution of the note on which this action was brought. It is argued that if the Topeka bank was an innocent party, the surrender of that note was a sufficient consideration for the one given to the bank, and that defendant, to whom thé original note was surrendered, had never restored or tendered it or its value. It is the theory of the defendant that, so far as plaintiff was concerned, the transaction was tainted with fraud throughout, not only when the original note was given, but also when the note and1 each of the renewals were executed by the defendant directly to the bank. The plaintiff represented that it was carrying the debt for the construction company, and that for the bank’s convenience it desired the execution of the note to the bank as accommodation paper, and in that way help the bank to carry the indebtedness for the construction company. The testimony is open to the inference that the transfer of the paper to the Topeka bank and the renewal of it in the name of the bank was a part of the fraudulent transaction. If the note taken by the bank was in fact procured by fraud, the defendant was entitled to make that defense,. even if the Topeka bank might have enforced it against the defendant. The fraud of the plaintiff with respect to the original note and the procurement of the execution of ’the renewals vitiated the transaction, and the plaintiff cannot avail itself of its own wrong in fraudulently inducing the defendant to change the form of the debt by executing a note to the bank itself. (Schmidt v. Bank of Commerce, 234 U. S. 64.) This phase of the case was given consideration on the former appeal. Instruction number three, given by the court, was to the effect that if the note given to the bank on October 15, 1909, was intended as an extension of the note payable to the construction éompany, and if the plaintiff made the false and fraudulent representa tions alleged, and fraudulently induced the execution of the note to the bank, and that if these false representations were also made to procure the execution of the renewal notes, the plaintiff could not recover. The instruction was expressly approved, and it was clearly stated that if the note given to the bank was executed to take up the original one, and was procured, by fraud, it was not enforceable against the defendant. (Bank v. Stroup, 100 Kan. 17, Id., 100 Kan. 444, 164 Pac. 1054.) . There is support for the defense that the note was for accommodation, and also that it was procured by fraud. It is true that most of the evidence in support of these defenses was given by the defendant, and that much of it was contradicted by witnesses of the plaintiff, but the findings and verdict show that the defendant’s version of the transactions was accepted as true by the jury. An attack is made upon the instructions given by the court, directed especially against the third instruction, to which reference has been made, and upon which this court placed its approval on the former appeal. There is no occasion to reopen. the discussion upon that holding. Most of the objections made to the other instructions are disposed of in the prior holdings of the court as to the defenses of fraud and accommodation without consideration, and in none of the objections do we find anything substantial. The instructions fairly applied the law to the issues and the evidence in the case. The judgment is affirmed.	[ -16, -8, -31, -4, -102, -32, 42, -38, 17, -92, -74, 83, 41, -54, 20, 105, -12, 93, -12, 96, -10, -77, 7, -53, -42, -13, -14, 68, -79, 94, -28, 86, 76, 48, -54, -35, 102, -64, -45, 86, -118, -122, 40, 70, -39, 96, 116, 59, 84, 78, 117, -100, -13, 41, 29, -58, 105, 40, 107, 61, 80, -16, -118, -123, 109, 5, -77, 4, -100, 69, -40, 44, -112, 49, 1, -56, 114, -74, -122, -12, 107, -69, 13, 102, 98, 0, 85, -49, 124, -104, 38, -2, 29, -89, -112, 24, -119, 35, -74, -99, 116, 22, 6, -4, -2, 28, 25, -20, 3, -33, -46, -77, -113, 52, 26, 43, -9, -127, 48, 96, -52, -96, 92, -46, 123, -101, -114, -75 ]
The opinion of the court was delivered by Mason, J.: 1. In this case it was decided that where freight rates are varied according to the value of the property shipped, the liability of the carrier, even for losses due to its negligence, is limited to the value stated in the bill of lading. In a petition for a rehearing a new point is raised — that this ruling is in conflict with a statutory provision not previously' referred to, reading: “That any common carrier receiving property for the transportation from one point in this state to another point in this state shall issue a receipt or bill of lading therefor and such carrier or any other common carrier to which said property may be delivered or over whose line or lines such property may pass shall be liable to the owner of such property for any loss, damage or injury caused by any one or more of said carriers, and no contract, rule or regulation shall exempt any of such common carriers from the liability hereby imposed.” (Laws 1911, ch. 240, § 1, Gen. Stat. 1915, § 8469-.) We do not regard the limitation of the recovery to the amount on which the freight charges are based as an exemption of the carrier from liability for loss or injury which it has caused. The language quoted is substantially and almost literally that of the Carmack amendment (Part 1, 34 U. S. Stat. at L., ch. 3591, § 7, p. 595), except that it applies to intrastate business, and was obviously intended to make the rule for local shipment conform to that prescribed by congress for interstate commerce. We give to the language used by the legislature the same force which the federal supreme court has given it when used by congress. 2. In the original opinion it was said that the great weight of authority favors (in local as well as interstate commerce) the rule that where rates are graded by the value placed on the property, contracts limiting the carrier’s liability to that amount are valid. Apparently in reference to this statement it is said in the petition for a rehearing that the court has overlooked “the majority of opinion, when there is a prohibitive statute involved”; and in support of this suggestion authorities are cited, to the effect that contracts undertaking to restrict the amount of recovery are invalid where a statute forbids the carrier’s common-law liability being restricted in that manner. Our statute forbidding such contracts, however, makes an exception where permission has been given by the railroad commission (now the utilities commission) as is the case here. It is further urged that our decision is in conflict with Railway Co. v. Sherlock, 59 Kan. 23, 51 Pac. 899. That case was decided in 1898, but, as was stated in the original opinion, it was based on a contract made August 14, 1892, and no order of the board of railroad commissioners affecting the matter was made until September 1, 1892. The decision turned upon the proposition that a contract limiting the carrier’s liability could be valid only if made by permission or order of the railroad board, the court adding; “No such order or permission has been given; at least the giving of it is not claimed.” (p. 28.) In the original opinion in the present case it was said that probably the statute of 1883, prohibiting contracts limiting the carrier’s common-law liability unless sanctioned by the railroad commission, was rendered ineffective by the repeal of the act creating that body. This statement is challenged in the petition for a rehearing. It does not in any way affect the decision, but was made incidentally in giving the history of the statute. It was based on the theory that the legislature, having adopted the rule forbidding such contracts only upon condition that the railroad board could control its application, might not be presumed to have wished it to be in force when that restraining influence had been removed. (Telegraph Co. v. Austin, 67 Kan. 208, 72 Pac. 850.) However, the question is not material here. After full consideration of the petition for a rehearing the court adheres to the views heretofore expressed, and the petition for a rehearing is denied.	[ -14, 122, -36, -68, 26, 98, 10, -72, 89, -32, -91, 83, -19, 71, -123, 97, -9, 91, -13, 43, 116, -73, 23, -29, -45, -13, 35, -42, 59, -37, 109, 78, 76, 97, -54, -43, 102, -54, -63, 28, -50, 44, -102, -19, -7, 65, 52, 42, 20, 73, 81, -113, -13, 36, 25, -61, 41, 40, 57, 57, -64, -71, -102, 15, 127, 4, 17, 116, -100, 5, -24, 10, -104, 17, 9, -24, 112, -89, -105, -12, 41, -103, 9, 98, 103, 1, 69, -17, -36, -72, 39, -38, -81, -122, 20, 56, 3, 65, -105, -99, 100, 66, 54, -2, -6, 29, 95, 109, 13, -81, -106, -95, -113, 96, -102, -42, -50, -89, 50, 116, -60, -80, 93, 71, 91, -101, -97, -50 ]
The opinion of the court was delivered by Mason, J.: An action was brought in the name of the Lowell-Woodward Hardware Company, describing itself as a Colorado corporation, against several persons alleged to constitute a partnership, upon a promissory note. One of the defendants, Ed. Semke, filed an answer consisting of a verified general denial. Judgment was rendered for the plaintiff, and Semke appeals. 1. The appellant’s contention is that there was no competent evidence of the plaintiff’s corporate existence, or of his being a member of the partnership described. A witness for the plaintiff testified that it was a corporation, over an objection that the question called for a conclusion, and the ruling is complained of. On cross-examination he stated in full the basis of his opinion, so that the first answer was not prejudicial. (Insurance Office v. Woolen-mill Co., 72 Kan. 41, 82 Pac. 513.) He said that the plaintiff was running a hardware store; that he inferred it was'a corporation from its name and its mode of doing business; and that a bank president had told him it was a corporation. Possibly this evidence did not tend to show even the defacto existence of the corporation — which is all that could be required (7 R. C. L. 105) — but that will not avail the appellant. One who enters into a written contract with a party described therein as a corporation is precluded, in an action brought thereon by such party under the same designation, from denying its corporate existence. (7 R. C. L. 105, 106; 10 Cyc. 521.) Here the payee was styled in the note, “The Lowell-Woodward Hardware Company,” a title which prima facie imports a corporation. (3 Ency. of Ev. 599; 7 E. C. L. 699; Note, Ann. Cas. 1912 A 969, 2d column.) There is some difference of opinion as to whether one contracting with an organization styling itself a “company,” there being nothing further in the language used to indicate its character, the term “corporation” not being employed, can be heard to deny its corporate capacity when sued by it upon the contract. The cases bearing on the question are collected in Ingle System Co. v. Norris & Hall, 132 Tenn. 472, which holds, in accordance with what it regards as the weight of authority, that such defense cannot be made. (See also Toledo Computing Scale Co. v. Young, 16 Idaho, 187; Bremen Foundry & Machine Works v. Boswell, 96 S. E. 182 [Ga.]; Lumber Co. v. Cotton, 12 Colo. App. 375.) In the leading case to the contrary (The Welland Canal Company v. Hathaway, 8 Wend. 480, annotated in 24 Am. Dec. 51), the. decision turns upon the fact that some of the elements of equitable estoppel, according to the accepted definition, are lacking. We agree that no full, formal, technical estoppel to deny corporate' existence arises from such a state of facts, but we think it accords with modern views of good practice and tends to promote substantial justice to hold, and .we do hold, that one who has signed a promissory note running to a payee described by a name appropriate to a corporation, although not employing that term, cannot, in an action brought against him thereon by such payee under the same name, in which it alleges itself to be a corporation, be heard to question the plaintiff’s corporate existence, unless upon a showing that his obligation to make payment would be thereby affected. The defendant, having given his promise to pay the sum indicated to the payee named, should not be permitted to escape or delay performance by raising an issue as to the character of the organization to which he is indebted, unless his substantial rights might be thereby affected, which would only be under exceptional conditions. It is thoroughly settled that in such a situation the defendant cannot attack the regularity of the plaintiff’s organization, or take any advantage of the fact that it has no legal standing as a corpora'tion. No good reason is apparent why, having explicity promised to make payment to the concern by which he is sued, he should be permitted to question its de facto, any more than its de pire, character — to inject into the case an issue having no bearing on his obligation to'make payment. 2. Evidence was introduced to the effect that the defendants were engaged in business as a firm, operating a mine in Colorado, under .the name, “Superior Leasing Company,” which was signed to the note sued on; that the appellant was a member of the company and had put money into it and helped do some work in connection with its business; and that he had signed several notes in its behalf. He himself testified, in effect, that he had been a member of the company until 1912, but had withdrawn from it in November of that year. If his withdrawal under the circumstances stated by him would have released him from liability on the note sued on, the court must be deemed to have found that he had not withdrawn. The decision in favor of the plaintiff was therefore supported by the evidence. The judgment is affirmed.	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The opinion of the court was delivered by Marshall, J.: Josie Dunkerton presents an application for a writ of habeas corpus. Notice of the hearing of the application has been given, and the matter is submitted on its merits. The petitioner is confined on the state industrial farm for women, under conviction for violating section 1 of chapter 215, Laws of 1917, commonly known as the “bone-dry” law. She argues that the act under which she is confined (Laws 1917, eh. 298) is unconstitutional, for the reason that it contravenes section 1 of the fourteenth amendment to the constitution of the United States, and for the further reason that it contravenes section 1 of the bill of rights of the constitution of the state of Kansas, in this, that the act denies the equal protection of the law.to women over twenty-five years of age. To support this argument, the petitioner contends that, in every case where a woman is convicted of violating any criminal law, and punishment by imprisonment is prescribed, the act takes from the trial court the right to impose the minimum penalty on her; that it takes from that court the right to parole women; that, under the act, women must be sentenced to the penitentiary; and that in these respects the punishment of women is more severe than the punishment of men for the samé offense. Boys under the age of sixteen years, who commit offenses punishable by imprisonment, may be sent to the, state reform school. (Gen. Stat. 1915, § 10081.). Girls under the age of eighteen years who commit similar offenses may be sent to the industrial school for girls. (Gen. Stat. 1915, § 10108.) Any male person between the ages of sixteen and twenty-five, who shall be convicted for the first time of any offense punishable by confinement in the state penitentiary, may be sent to the Kansas state industrial reformatory. (Gen. Stat. 1915, § 10053.) ' Under these statutes boys and girls, and men and women are not treated alike. Women cannot be sent to the state industrial reformatory. Boys over sixteen years of age cannot be sent to the state reform school; while girls between sixteen and eighteen years of age may be sent to the industrial school. Prior to the passage of the act now questioned, a woman over eighteen and under twenty-five, who committed an ■ offense punishable by imprisonment in the penitentiary was sent to that institution. She could not be sent to any one of the other three institutions. Reformation and education are the primary objects of the reform school, of the state industrial reformatory, and of the industrial school. Punishment is incidental only. These institutions are primarily schools, not prisons. The constitutionality of the acts creating them, and of the acts providing for confinement of violators of the law in them, has not heretofore been questioned on the ground now presented. The statute under consideration establishes an industrial farm for women, to which all women above the age of eighteen years, who shall be convicted of any offense against the criminal laws of this state, must be sent. Section 5 of the act reads: “Every female person, above the age of eighteen years, who shall be convicted of any offense against the criminal laws of this state, punishable by imprisonment, shall be sentenced to the state industrial farm for women, but the court imposing such sentence shall not fix the limit or duration of the sentence. The term of imprisonment of any person so convicted and sentenced shall be terminated by the state board of administration, as authorized by this act, but such imprisonment shall not exceed the maximum term provided by law for the crime for which the person was convicted: Provided, that where the person, so convicted and sentenced to said industrial farm for women, is not more than twenty-five years of age and said conviction is for her first offense, the board of administration may parole or release such person under rules and regulations' prescribed by said board before the expiration of the minimum term, but in all other cases, the person so committed to said institution shall not be eligible to parole by the board of administration until the expiration of the minimum term fixed by law for the punishment of the offense for which she has been convicted: Provided further, that where any person has been committed to such institution on conviction for-murder in the first or second degree, such person shall not be released from said institution until the expiration of the term for which such person is sentenced, except by action of the governor exercising his pardoning or parole power.” (Laws 1917, ch. 298, § 5.) The petitioner directs the attention of the court to part of section 14, and to all of section 22, of the act. The material part of section 14 reads: “The state board of administration shall provide equipment for the regular employment of all inmates of the state industrial farm for women, by erecting shops for the manufacture of goods and utensils and the purchase of farm machinery and stock which will permit light forms of agriculture, such as truck gardening, chicken, raising and dairying, not to the exclusion of the cultivation of cereals and grasses. It shall be the duty of the superintendent to provide for the daily labor of all inmates according to their capacity and adaptability.” The purpose of the act of 1917 is to ameliorate the condition of women who have been convicted of an offense punishable by imprisonment. Under the act women are not subjected to the debauching influence of the county jail and of the penitentiary and of the close confinement therein, but are placed in a field wliere labor is pleasant and restraint is limited, and where the evil influence of other persons convicted of crime is minimized. The act seeks to improve, to educate, and to build up; not to punish. The court is asked to say that the law is unconstitutional because in accomplishing these objects it imposes restraint on women different from that imposed on men. Morgan v. State, 179 Ind. 300, is cited by the petitioner. There the supreme court of Indiana held -that a statute which prescribed a treatment of men acquitted of crime on the ground of insanity, different from that accorded women thus acquitted, denied to women the equal protection of the law, and contravened the fourteenth amendment to the constitution of the United States. The reasoning in that case is not convincing. The legislature may very properly determine that women convicted of crime shall be less severely punished than men convicted of the same crime. The number of women that commit crimes is much smaller than the number of men committing similar crimes, and that fact may be taken into consideration by the legislature, and punishment may be prescribed which recognizes that difference. It is argued that the act of 1917 takes away from the district court the right to parole a woman convicted in that court, of any offense. The statute does not in terms so declare. It does provide that, after she has been placed on the farm, the board of administration may parole, but that does not exclude the trial court from paroling at the time judgment is rendered, or before confinement on the farm begins. There is always a department of the state government with authority to parole a woman who has been convicted of an offense punishable by imprisonment, or who is confined on the industrial farm. It is argued that sentencing a woman to the industrial fai m is the same as sentencing her to the penitentiary. The industrial farm is not the penitentiary; they are separate institutions, operated in different ways, to accomplish different objects. The only resemblance between the two is the restraint placed upon their inmates to prevent them from leaving the institutions. The petitioner’s attack on the law cannot be sustained, and her application for a writ of habeas corpus is denied.	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The opinion of the court was delivered by Marshall, J.: The plaintiff appeals from an order dismissing his action. It was one for damages for personal injury sustained by the plaintiff, caused by the negligent acts of the defendant while the plaintiff was working for the defendant in its brick plant at Coffeyville. Summons was duly served, but the defendant made default. Answer day was January 31,1918. On February 6, the plaintiff requested that judgment be entered in his favor for $2,000, the amount of damages alleged and prayed for in the petition. The court refused to 'render judgment by default for that amount without evidence. The cause was then continued until February 28. On February 9, the defendant, by permission of court, filed a motion to make the petition more definite and certain in a number of particulars. Afterward the plaintiff filed a motion to strike the motion from the files. These motions were heard on March 1; the motion to strike from the files was denied, and the motion to make the petition more definite and certain was granted. The plaintiff was given ten days in which to comply with the order of the court. On March 11, the plaintiff filed a written statement declining to plead further, and electing to stand on his petition. On March 27, the defendant filed a motion to dismiss the action because the plaintiff had not complied with the order of the court. That motion was heard on June 1,1918, when the plaintiff, in open court, refused to amend his petition, and elected to stand thereon. The action was then dismissed. The plaintiff argues that the court did not have jurisdiction to' hear the motion to require that the petition be made more definite and certain; that the court erred in sustaining that motion; and that the action should not have been dismissed. 1. Did the court have jurisdiction to hear the motion to make more definite and certain?. That question is answered by section 108 of the code of civil procedure. It reads: “The court or any judge thereof in vacation may in his discretion, and upon such terms as may be just, .allow an answer or reply to be made or other act to be done after the time limited by this act, or by 'an order enlarge such time.” (Gen. Stat. 1915, § 7000.) The court had jurisdiction to grant leave to file the motion (Mo. Pac. Rly. Co. v. Linson, 39 Kan. 416, 18 Pac. 498; Torpedo Co. v. Petroleum Co., 75 Kan. 530, 89 Pac. 913), and then to' hear it. 2. Was it error to sustain the defendant’s motion ,to make the petition more definite and certain? The petition alleged that the plaintiff was working for the defendant in its brick plant, wheeling tile along the sides of the defendant’s kilns, where there were ditches and trenches, usually constructed so that it was impossible for a man’s foot to slip into them. The petition further alleged: “Yet the said defendant, disregarding and neglecting its duty as aforesaid, did not then and'there provide and furnish suitable, safe and sufficient means of passage into and out of said kilns, but on the contrary thereof did negligently and carelessly fail to provide and furnish suitable, safe and sufficient means of passage into and out of said kilns, whereby and by means of the unsuitable, unsafe and insufficient means of passage into and out of said kilns and on or about the 17th day of August, 1917, by reason of some of the cross-bricks being carelessly and negligently removed from the ditches or trenches aforesaid and the failure of said company to provide and furnish sufficient running boards which it did fail and neglect to provide and furnish, plaintiff in attempting to pass out of one of its kilns with a wheelbarrow load of tiles, accidentally slipped and stepped into one of the holes in one of said ditches or trenches, caused by the negligent and careless removal of some of the bricks from across one of said ditches or trenches, fell and broke his right arm by striking same against another loaded wheelbarrow standing near by in said kiln.” The defendant’s motion asked, among other things, that the petition be made more definite and certain as to the place at which the plaintiff was injured. The petition was indefinite and uncertain in that respect. The defendant had a right to be informed definitely concerning that matter, in order to properly prepare its defense. Under the petition as filed, the plaintiff could prove that the accident occurred at any one of a number of places in the plant.. Section 122 of the code of civil procedure provides that — , “When the allegations of a pleading are so indefinite and uncertain that the nature of the charge or defense is not apparent, the court or judge may require them to he made definite and certain by amendment.” (Gen. Stat. 1915, § 7014.) Under another provision of the same section it has been held that the trial court may, in its discretion, order the plaintiff to amend his petition by striking out irrelevant and redundant allegations. (Drake v. National Bank, 33 Kan. 634, 7 Pac. 219; Smythe v. Parsons, 37 Kan. 79, 14 Pac. 444; Sramek v. Sklenar, 73 Kan. 450, 85 Pac. 566; Harris v. Morrison, 100 Kan. 157, 159, 163 Pac. 1062.) If the power of the court to require an amendment of a pleading tinder one part of section 122 of the code is discretionary, the power to require an amendment under another part of the same section should be likewise discretionary. Such is the law in other jurisdictions. (Cathcart v. Peck et al., 11 Minn. 45; Bowers v. Schuler, 54 Minn. 99, 104; McDuffie v. Bentley, 27 Neb. 380, 385; 6 Encyc. Pl. and Pr., 280.) It was not error to require the plaintiff to make his petition ■more definite and certain as to the place at which he was injured. 3. When the motion to make the petition more definite and certain was sustained, it was the duty of the plaintiff to comply with the order of the court, or to set out a reasonable and proper excuse for not so doing. When the plaintiff filed his written statement in which he declined to plead further, and elected to stand on his petition; and when he, in open court, refused to amend, and again elected to stand on his petition, the court was justified in dismissing the action. Section 395 of the code of civil procedure in part reads: “An action may be dismissed without prejudice to a future action: “Fifth, by the court, for disobedience by the plaintiff of an order concerning the proceedings in the action.” (Gen. Stat. 1915, § 7299.) In Burdick v. Investment Co., 71 Kan. 121, 80 Pac. 40, this court said: “The court sustained a motion to require these three causes of action to be separately stated and numbered, and upon the refusal of the plaintiff to comply with this order dismissed the action. Held, not error.” (syl. ¶ 4.) This rule has been applied where the plaintiff refused to strike out irrelevant and redundant matter in his petition. (Drake v. National Bank, 33 Kan. 634, 7 Pac. 219.) The judgment is affirmed.	[ -14, -32, -12, 12, -118, 96, 50, -78, 81, -95, 55, 115, -19, -61, 12, 111, 123, 27, -47, 121, -19, -77, 22, 89, -14, -77, 82, 85, -76, 127, -28, -66, 76, 112, 10, -105, 70, 67, -63, 92, -50, -124, -120, -20, -47, 8, 48, 123, 82, 11, 49, -2, -29, 43, 24, -61, -23, 40, -37, -72, -45, -16, -54, 13, 111, 16, -95, -89, -98, 71, 80, 58, -112, 57, 3, -24, 114, -78, -122, 84, 103, -103, 40, 118, 99, 33, 29, -17, -68, -71, 111, 59, -115, -26, -111, 9, -53, 37, -74, -103, 125, 16, 7, 126, -18, -115, 93, 44, 3, -54, -106, -109, -113, 116, -70, 13, -21, -125, 52, 96, -52, -86, 94, 67, 27, -101, -33, -100 ]
The opinion of the court was delivered by Price, J.: Plaintiff, a five-year-old boy, was struck by a taxicab while in a crosswalk in an emergency entrance driveway to the Sedgwick County Hospital. He brought this action — by his mother as next friend — against the cab company and its driver to recover for his personal injuries. The pleadings need not be detailed. They contained the usual allegations of negligence and denials. The petition sought recovery in the amount of $52,000. Subsequently, by permission of the court, it was amended by increasing the prayer to $92,000. No special findings were requested. The jury returned a general verdict for $61,000. It was approved. Defendants’ motion for a new trial was overruled and judgment was entered upon the verdict. Defendants have appealed from all adverse orders and contend they are entitled to a new trial because of four grounds of alleged error. It first is contended the trial court committed reversible error and abused its discretion in sustaining plaintiff’s motion to increase the prayer of the petition on the morning of the first day of trial, and in sustaining such motion in the presence and hearing of the jury. At a post-trial hearing on the matter concerning the circumstances of granting plaintiff’s motion to increase the prayer, the trial court specifically found that its ruling— “. . . was in a whispering voice, and that the rulings were made so that the jury did not know what the rulings were about.” We accept this finding as being final and conclusive, and therefore that the order permitting the amendment was not made “in the presence and hearing of the jury.” With respect to the amendment itself, the facts appear to be substantially as follows: The petition, which was filed in May, 1961, alleged that plaintiff suffered numerous lacerations, sprains, cuts and broken bones, with resulting pain and physical and mental shock, and, as stated, sought recovery in the amount of $52,000. The action was tried in October, 1962. About six weeks prior to the date of trial counsel had a telephone conversation in which counsel for plaintiff told counsel for defendants that in the meantime it had been discovered that plaintiff had sustained severe brain damage as a result of the accident, and that he intended to file a motion to amend the petition by increasing the prayer. No written motion, however, 'was filed. At the opening of the trial, when counsel were at the bench, counsel for plaintiff orally moved for permission to amend. Counsel for defendants, although impliedly conceding the matter was discretionary with the court, entered an oral objection. The trial court reserved its ruling on the motion until the evidence was in. At the conclusion of the evidence it permitted the amendment to be made in the manner and under the circumstances above stated. Under the circumstances shown, it may not be said that the trial court abused its discretion or committed error in permitting the amendment. Under the provisions of G. S. 1949, 60-759, trial courts are given broad discretionary powers concerning the amendment of pleadings, before or after judgment, when the amendment does not change substantially the claim or defense. The “claim” here was for damages for personal injuries sustained because of the alleged negligence of defendants. The claim was not changed— only the amount sought. In Fiest v. Steere, 175 Kan. 1, 259 P. 2d 140, it was held: “The allowance or denial of requests to amend pleadings are matters over which a trial court has authority to exercise wide discretion and its action with respect thereto will not constitute reversible error unless it affirmatively appears the amendment allowed or denied is so material that it affects the substantial rights of the adverse party and constitutes a clear abuse of judicial discretion.” (syl. 1.) To the same effect see Thompson v. Howard Motors Co., 122 Kan. 339, syl. 6, 252 Pac. 468, and Blair v. Hallmark, 188 Kan. 102, syl. 2, 360 P. 2d 1051. It next is contended that the verdict is contrary to the evidence. Nothing would be accomplished by detailing the testimony of the various witnesses as to just how this accident occurred. It is sufficient to say there was evidence which established that at the time and place in question the driver of the cab was not maintaining a proper lookout and was guilty of other acts of negligence charged in the petition. No complaint is made as to the instructions, and the presumption is that the jury was correctly instructed on all phases of the case, including the duties of a driver of a motor vehicle, negligence, proximate cause, the rule of contributory negligence applicable to a young child, and all other matters in issue. It was the jury’s duty to find the facts, and the general finding in favor of plaintiff imports a finding in his favor upon all controverted questions of fact in the case in support of which evidence was introduced. It may not be said the verdict is contrary to the evidence. It next is contended that the verdict was given under the influence of passion and prejudice, and is excessive. With respect to this proposition, it is noted that under this heading in their brief defendants make no argument concerning the amount of the verdict. The rule is that assignments of error are considered to be abandoned unless argued in the brief of an appellant. (Tawney v. Blankenship, 150 Kan. 41, syl. 1, 90 P. 2d 1111, and Ferrellgas Corporation v. Phoenix Ins. Co., 187 Kan. 530, syl. 3, 358 P. 2d 786.) In passing, however, we note that the record contains much medical evidence to the effect plaintiff had sustained severe brain damage, and that the parties stipulated— “It is stipulated between the plaintiff and the defendants that the plaintiff has been examined and tested by the Poling Neuropsychiatric Clinic, the results of which revealed evidence of organic and emotional disturbances; that the prognosis in light of the plaintiff’s age is indeterminate; that psychiatric treatment is recommended.” The contention that the verdict was given under the influence of passion and prejudice, and defendants’ principal and final contention that a new trial should be granted because of alleged prejudicial conduct by plaintiff’s counsel — will be considered together. Defendant cab driver was seventy-seven years of age at the time of trial. He had been engaged in that line of work for many years. Counsel for plaintiff — by various tactics — attempting to show that he had been charged with many traffic violations over the years— some being of a serious nature. The trial court ruled that evidence of this nature was inadmissible. No record of the final arguments of counsel was made. According to an affidavit of defendants’ counsel, offered at the hearing on the motion for a new trial, it appears that during final argument counsel for defendants told the jury that although counsel for plaintiff has accused defendant cab driver of serious traffic convictions and charges there had been no evidence to support those accusations, whereupon counsel for plaintiff interrupted and in a loud voice said: “But Judge . . . you told me you wouldn’t let that evidence in.” Also, according to this affidavit, counsel for plaintiff in the final portion of his closing argument referred to defendant cab driver as — “a menace on the streets of Wichita.” It is contended the foregoing, and other matters occurring at the trial, show a deliberate attempt by plaintiffs counsel to impress the jury with the fact that defendant cab driver had a bad driving record but that the court would not admit such evidence, and that counsel’s tactics throughout the trial were such as to create an “atmosphere” that the trial was “between an injured five-year-old boy and a seventy-seven-year-old man,” all of which tended to inflame and prejudice the jury. All of these matters were given a thorough airing at the hearing on the motion for a new trial. At the conclusion thereof the trial court commented at length. Rather than attempt to summarize— we quote its comments in full: “The court, of course, is not involved with any emotions between counsel. I have to look at this very realistically and factually from the standpoint of the law. ... As far as the affidavit is concerned, they are outside of my knowledge, but from a legal standpoint, that is the way I am looking at it, in answering the motion for new trial, item by item, I wouldn’t say that there was misconduct on the part of counsel. By rights you have to renew your demurrer, so from a legal standpoint I don’t believe the defendants are entitled to a new trial from that standpoint. “Now, with regard to Mr. Kelly’s comments during the argument. I know that arguments are always somewhat heated, I’m of the opinion, and I think the law will bear me out, that unless a motion at the time is presented to the court for mistrial because of the argument of counsel or statements made by counsel, the defendant would waive then- right to a mistrial. “With regards to the evidence of convictions and so forth that Mr. Kelly attempted to get in, again, I think, I sustained every objection that was made to those questions asked, and when objections were made I sustained them. I don’t believe that evidence of prior convictions is admissible in a damage suit, and I think I made that comment either in Chambers or in court. . . . I sustained your objection when Mr. Kelly referred to it. I sustained those objections right down the line. I don’t think there was any motion made then or during the cross-examination to strike. I don’t know whether I struck —I don’t think I struck the comments from the consideration of the jury but I don’t think there was any motion for me made that I could rule upon, and there was no objection to the closing argument. As I say, I just don’t believe there is any legal ground for the basis of your objection on your first prayer in your motion for new trial. And I don’t mind telling you, I was surprised that no objections were made or that there wasn’t a motion made for — frankly, I wouldn’t, if the motion would have been made, I wouldn’t have granted the motion for mistrial because I don’t think there was misconduct on the part of either counsel in this case that would warrant a new trial. I think the defendant left the case, without objections, go to the jury and are bound by the jury’s verdict or decision. ... At the conclusion of the evidence Mr. Kelly renewed his motion to amend and at that time I did grant the amendment to conform with the proof and amended the petition from $52,000.00 to $92,000.00 because he was, in my opinion, able to prove and did prove, and apparently the jury believed so, that the child did have brain damage. And on a six year old child, brain damage, whether it is $52,000.00 or $92,000.00 or $192,000.00, I don’t know how much, I don’t know the value of brain damage, except I think it’s very severe. Anyway, the Supreme Court, and I read the decisions, has on numerous occasions, and I think you yourself said, Mr. Bachmann, in Chambers, that the Supreme Court has ruled that it is within the court’s discretion. I think you objected to it, but as I recall at the time you smiled. You said, I will note my objection but it is discretionary with the court. . . . I think factually the jury followed the proof. We all have compassion for a small child like that. But I don’t think there was anything in the argument, in the evidence, or in the rulings that the jury was really influenced by passion or prejudice in the case. “Now, with regard to the fourth ground, the verdict was in whole or in part contrary to the evidence, I don’t think you pointed out to me, to my satisfaction at least, where there is any decision that was contrary to the evidence. Weighing brain damage, and there was nothing to the contrary, the evidence stands that the child does have brain damage, and I don’t know how you can evaluate it. And if I was on the jury myself, I don’t know how I would evaluate brain damage. There is nothing before me now to show that there was any verdict that was contrary to the evidence at all. And Mr. Kelly made the comment your’re asking the court to — I don’t think you’re asking the court to cut, as Mr. Kelly said, cut down the verdict. ... I have considered this matter very carefully and I heard the case. “I was very careful in my ruling on the case. There were no objections on the part of either counsel to the instructions, so counsel are bound by the instructions. I think they were proper. I wouldn’t have given them if I hadn’t. “And I just don’t find anything, Mr. Bachmann, on the part of the defendants or the plaintiff that would warrant me in granting a new trial. And I am going to overrule your motion.” Our review of this matter has been handicapped somewhat by the fact no record of the final arguments was made. An appellate court should not be called on to “retry” issues on affidavits as to what happened at the trial. If it is a fact that no objection was made to the matters occurring on final argument, then, of course, defendants are in no position to complain. (Watkins Co. v. Hanson, 185 Kan. 758, 761, 347 P. 2d 447.) Under the circumstances, however, we prefer to rest our decision on the broader and over-all aspect of the question. In the very nature of things, a trial court always is in a better position than an appellate court to determine whether a verdict resulted, wholly or in part, from the asserted misconduct of counsel, and ordinarily its conclusion in the matter will not be disturbed unless, under all the circumstances, it is plainly in error. In Ely v. Jones, 110 Kan. 10, 202 Pac. 609, it was said: “A new trial is also asked on account of what is alleged to be the misconduct of counsel for the defendant. The trial court’s ruling on this matter must be regarded as conclusive because of its superior opportunity to form a just opinion of the character and effect of the conduct complained of.” (p. 12.) In Smith v. Cement Co., 86 Kan. 287, 120 Pac. 349, it was held: “Before a judgment will be reversed for misconduct of counsel of the prevailing party occurring at the trial it must be made to appear that such misconduct prejudiced the rights of the defeated party.” (syl. 1.) and said: “It rests in the sound discretion of the trial court to determine from all the circumstances whether the irregularity or misconduct may have influenced the jury in arriving at their verdict.” (p. 289.) The rule of the last-mentioned case was followed in Murphy v. Edgar Zinc Co., 128 Kan. 524, syl. 1, 278 Pac. 764, 65 A. L. R. 1213. See also Winter v. Sass, 19 Kan. 556, 566; Bortnick v. Cudahy Packing Co., 119 Kan. 864, 866, 241 Pac. 442, and Thompson v. Howard Motors Co., 122 Kan. 339, 343, 252 Pac. 468. The above-quoted comments of the trial court speak for themselves and indicate a conscientious approach to the question. After a most careful consideration of the record and the contentions made, we have concluded that we would not be justified in disturbing the order denying the motion for a new trial. The law does not guarantee to every litigant a “perfect” trial, but it does guarantee to him a fair trial. It is not enough to disturb a judgment that some error or impropriety transpires during a trial, and error, standing alone— does not raise the presumption of prejudice. Reversal is proper only where it is affimatively established that the error has prejudicially affected the substantial rights of the defeated party. (Home Ins. Co. v. Atchison, T. & S. F. Rly. Co., 189 Kan. 316, 319, 320, 369 P. 2d 338.) Our decision, however, is not to be construed as condoning the alleged acts of misconduct of counsel complained of by defendants — if, in fact — they did occur. Here, the trial judge — who saw and heard all that transpired— including the “reactions” — if any — of the jury — reached the conclusion that the verdict was not the result of passion and prejudice, and that defendants’ rights were not prejudicially affected by anything occurring at the trial — and, as before stated, we conclude that we would not be justified in disturbing the finding and order so made. Further discussion would be repetitious. The judgment is affirmed. Jackson, J., not participating.	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The opinion of the court was delivered by Hatcher, C.: This is an action by a farm laborer to recover damages for the loss of a leg and other injuries while operating an ensilage cutting machine. The issues presented for determination on appeal require a detailed presentation of the facts. There are no questions raised as to the pleadings. Although there were numerous witnesses, the record discloses very little conflict, if any, in the testimony. The plaintiff, Eric H. Anderson, was employed as a farm laborer by the defendant, W. E. Cooper. The defendant carried on rather extensive farm operations in Thomas County, Kansas. At the time of the injury in question, the plaintiff was engaged in operating a Gehl self-propelled ensilage cutter which was owned by the defendant and used in preparing feed for his cattle. The plaintiff had been operating the ensilage cutter for “three or four weeks or possibly more” at the time of the accident. In the process of preparing the ensilage the green fodder was cut and placed in windrows. The ensilage cutter then passed over the windrows, picking up the fodder, running it through a cutting device and blowing it through a conduit into trucks. The cutting blades or knives were attached to a wheel which weighed about 350 pounds and in normal operation revolved at about 720 r. p. m. Because of the weight of the cutting wheel and the speed at which it revolved, the wheel would continue to spin for sometime after the engine was stopped. The fodder had grown somewhat uneven in the field. The machine would plug up some 7 or 8 times a day as heavy growths of fodder were encountered. The blower spout would plug with ensilage causing the ensilage to accumulate around the cutter blades and stall the engine. When the machine plugged with ensilage, it was necessary to unlatch the hood over the cutter blades and reach in and pull the ensilage out by hand. The hood over the cutting blades was attached at one end to the blower spout. On the top of the hood was a warning sign which read: “Do not open while running.” The hood was made of light metal and had been sprung when the machine was overturned some years earlier. When the hood was disconnected for the purpose of lifting it and getting into the cutting blades, it would spring in and the blades would strike it if they were revolving. The plaintiff had been warned on numerous occasions not to unfasten the hood while the blades were turning. There were ways to determine whether or not the cutter blades were turning before the hood was opened if proper precautions were taken. The engine on the machine had a defective switch. In traveling over rough ground, the switch would sometimes shake loose from its connection and cause the engine to stop. The switch in itself was not dangerous. It simply caused the operation to stop until the engine was again started. The machine was not inherently dangerous if operated with reasonable prudence and in accordance with the instructions. It was dangerous if the hood was removed or unfastened while the cutting blades were in motion. Plaintiff knew this. He testified: “Q. Did you ever open that lid prior to October 10 of 1957 and have those blades turning when you opened them? “A. I can’t remember their ever doing that way. I know Ohrman and I talked about its being dangerous.” The plaintiff made no complaint that the machine was dangerous to operate. At the time of the injury the motor had come to a stop. The plaintiff thought that the ensilage had plugged the blower and concentrated around the cutting blades, stopping the engine. He disengaged the clutch, got astride the hood and unfastened it. When he unfastened the hood, the rotating blades hit the hood and threw him off balance. His right foot and lower right leg were thrown in contact with the rotating cutting blades resulting in mutilation to such an extent that it was necessary to amputate the right leg just above the knee. The plaintiff had erroneously assumed that the machine was plugged with ensilage. Instead, the switch had shaken loose and shorted out. When the machine was plugged with ensilage the rotating blades stopped rotating at the same time as the engine. When the switch shorted out and the engine stopped the cutting blades continued to rotate for some time. The plaintiff, believing that the machine was plugged, made no effort to determine whether or not the cutting blades were rotating. The action came on for trial and at the close of plaintiff’s evidence the defendant demurred thereto for the reasons that plaintiffs evidence showed no negligence on the part of the defendant, contributory negligence on the part of the plaintiff, and assumption of risk by the plaintiff. The court overruled the demurrer to plaintiff s evidence. The defendant introduced his evidence and at the close thereof again demurred to plaintiffs evidence and moved for a directed verdict in favor of the defendant and against the plaintiff. The motions were overruled. The jury answered special questions and returned a general verdict in favor of the defendant which was approved by the trial court. A timely motion for a new trial was filed and at the hearing thereof the trial court found that the jury had been guilty of misconduct while viewing the machine, but stated: “Gentlemen, I think that the motion for a new trial on the basis of misconduct is moot in view of the fact that I am now at this time going to reverse my decision on Mr. Cushenbery’s motion at the end of the evidence and find that judgment should have been rendered at that time for the defendant. So, the Court holds that this question of misconduct of the jury is moot, because the jury could not bring in any other kind of verdict in this case that I could approve in this type of case under the doctrine of contributory negligence where there was any negligence on the part of Mr. Anderson, which bars him from recovery.” The journal entry reads in part: “It Is Therefore By the Court Ordered and Decreed that the ruling of the Court on the defendant’s Demurrer and Motion for Directed Verdict, made by the defendant at the close of all of the evidence, which Demurrer and Motion were overruled, should be reversed and such Demurrer and Motion for Directed Verdict are now sustained and judgment rendered in favor of the defendant, upon such Motion and Demurrer, and that plaintiff pay the costs of this action. “It Is Further By the Court Ordered and Decreed that the Motion for New Trial, filed by the plaintiff herein, is now a moot question and the same need not be ruled upon by the Court at this time.” The plaintiff has appealed contending that the trial court erred in failing to grant a new trial after finding the jury guilty of misconduct, and in sustaining a demurrer to plaintiff’s evidence and directing a verdict in favor of defendant. We must state at the outset that if the trial court correctly determined that a demurrer should have been sustained to plaintiff’s evidence, or if it should have entered a directed verdict, the question of the jury’s misconduct becomes immaterial. The appellant first calls our attention to the rule applicable on consideration of a demurrer to the evidence, citing Palmer v. The Land & Power Co., 172 Kan. 231, 239 P. 2d 960, where it was held: “In testing the sufficiency of evidence as against a demurrer, the court shall consider all of plaintiff’s evidence as true, shall consider that favorable to plaintiff, together with all reasonable inferences to be drawn therefrom and disregard that unfavorable to plaintiff, and shall not weigh any part that is contradictory, nor weigh any differences between direct and cross-examination and, if so considered, there is any evidence which sustains the plaintiff’s case, the demurrer should be overruled.” (Syl. 1.) We adhere to the rule. We are constrained to hold, however, that appellant’s evidence, and the evidence as a whole, shows positively that the appellant assumed any risk which was present in the operation of the machine; that he was guilty of negligence in the operation of the machine which caused his injury, and there was no evidence to the contrary. The machine, like all harvesting machines which carry knives or cutting blades, did have some dangerous characteristics if improperly or carelessly operated. However, there was nothing inherently dangerous in the machine if operated according to instructions. The plaintiff had operated the machine some three or four weeks or more and was well acquainted with all of its characteristics. In the recent case of Blackmore v. Auer, 187 Kan. 434, 357 P. 2d 765, we considered the assumption of risk by an employee and assembled the numerous cases pertaining thereto. It is stated beginning on page 444 of the opinion: “Assumption of risk, in the law of master and servant, is a phrase commonly used to describe a term or condition in the contract of employment, either express or implied from the circumstances of the employment, by which the employee or servant agrees that certain dangers of injury, while he is engaged in the service for which he is hired, shall be at the risk of the employee or servant. (56 C. J. S., Master and Servant, §357, pp. 1148, 1149.) “In Railway Co. v. Bancord, 66 Kan. 81, 71 Pac. 253, it was said: . . But, reduced to its last analysis, the doctrine of assumed risk must rest for its support upon the express or implied agreement of the employee that, knowing the danger to which he is exposed, he agrees to assume all responsibility for resulting injury. To raise an implied agreement the risk assumed must be known to the employee, or it must be of such nature as, by the exercise of reasonable observation and caution for his own safety, he should have known it. It can never be said that one has agreed to assume responsibility for that of which he had no knowledge, or of the existence of which he is not chargeable with notice.’ (p. 88.) “The foregoing language was quoted with approval and applied in Parker v. City of Wichita, 150 Kan. 249, 92 P. 2d 86. It was also quoted in Taylor v. Hostetler, 186 Kan. 788, 352 P. 2d 1042. “It has been said that one who, knowing all the danger and peril of pursuing a given course and being under no compulsion to encounter the same, freely and voluntarily continues therein, cannot recover damages for injuries he may suffer. (Sweet v. Railroad Co., 65 Kan. 812, 70 Pac. 883; and Cooper v. Southwestern Bell Telephone Co., 159 Kan. 67, 151 P. 2d 692.) “The assumption of the usual risks of an employment is not ordinarily a jury question. It is a matter of law. It is only where the risk is or may be unusual that a jury question can arise; and even in such cases, if the risk though unusual is obvious, such as an ordinarily prudent, man could appreciate and understand, the workman who persists in the employment assumes the risk of it. (Lively v. Railway Co., 115 Kan. 784, 225 Pac. 103, and authorities cited therein.) “The reason for the doctrine of assumption of risk has been stated in Lively v. Railway Co., supra, in the following language: “ \ . . It is also a part of the doctrine of assumption of risk that a workman’s recourse, when called upon to perform a task too heavy or too dangerous for his capacity, is to quit his employment. That sounds harsh, too, but unless the court is to usurp the functions of the legislature it has no alternative but to declare the law as it is. In Iron Works Co. v. Green, 79 Kan. 588, 594, 100 Pac. 482, it was said: “ ‘ “At the first glance this seems to be a harsh rule, but since men have the right to accept employment in which both parties know the employee will be exposed to danger, and the employee has a right to accept greater compensation by reason thereof, neither the courts nor legal writers have been able to evolve a more equitable rule.” (See, also, S. K. Rly. Co. v. Moore, 49 Kan. 616, 31 Pac. 138.) “‘So this plaintiff, knowing as he did how heavy the rail was, and how many men were needed to handle it, and also knowing better than his employer —better than anybody else — how strong he was, how hard he could tax his muscles with safety to himself, continued in the employment and assumed the risk (Stenvog v. Minnesota Transfer Ry. Co., 108 Minn. 199, 25 L. R. A., n. s., 362, and note) of hurting himself with the usual consequences, strain, rupture, hernia, which flow from overtaxing one’s strength. . . .’ (p. 789.)” The doctrine of assumption of risk may present a complete defense and should not be confused with contributory negligence which may also present a separate and complete defense. However, it may be said that a person assumes the risk of injury from his own negligence. The distinction between contributory negligence and assumption of risk was discussed in Kleppe v. Prawl, 181 Kan. 590, 313 P. 2d 227, 63 A. L. R. 2d 175, where it is said: “While assumption of risk is somewhat akin to contributory negligence, these two doctrines of law are not synonymous because assumption of risk arises through implied contract of assuming the risk of a known danger; the essence of it is venturousness; it implies intentional exposure to a known danger; it embraces a mental state of willingness; it pertains to the preliminary conduct of getting into a dangerous employment or relation; it means voluntarily incurring the risk of an accident, which may not occur, and which the person assuming the risk may be careful to avoid; it defeats recovery because it is a previous abandonment of the right to complain if an accident occurs. Contributory negligence arises out of a tort; the essence of it is carelessness; it may or may not imply intentional exposure to a known danger; it is a matter of conduct; a contributorily negligent act leads more immediately to a specific accident. Another difference is that assumption of risk denies defendant’s negligence while contributory negligence admits defendant’s negligence but denies it is the proximate cause of the accident. (65 C. J. S., Negligence, § 117, pp. 709-711; 38 Am. Jur., Negligence, § 172, p. 847.)” (p. 594.) There can be but one conclusion drawn from the evidence. The plaintiff was guilty of negligence which caused his injury. The chief danger from the machine was in the cutting blades. The blades were completely enclosed. There could be no danger from the blades until the hood was removed, and there was no danger then if the hood was not removed while the blades were rotating. The appellant was well informed of this situation. He was an experienced farm hand some 54 years of age. He had been operating the machine some “three or four weeks, or more.” He had been warned on numerous occasions not to remove the hood while the blades were rotating. With this knowledge and after numerous warnings that he should not open the hood while the blades were rotating, which warning was also printed on the hood itself, the appellant proceeded to remove the hood without ascertaining whether or not the cutting blades were rotating. Although not dealing with an employee’s injury, the rule announced in Stevens v. Allis-Chalmers Mfg. Co., 151 Kan. 638, 100 P. 2d 723, has some application here. It was there held: “Where there is a safe and usual method of controlling the power delivered from a farm tractor to a harvester-threshing machine, but the operator thereof sought to control it by a manifestly dangerous and unusual method and was injured in so doing, he did so at his own risk, and the manufacturer of the equipment is not liable in damages therefor.” (Syl. 3.) It is an elementary rule of law that every person must exercise ordinary and reasonable care for his own safety and not expose himself to unnecessary risks, dangers or hazards in performing his duties. An employee must exercise ordinary prudence in handling machinery. A master cannot be held liable where the employee elects to take a reckless and unnecessary risk. The appellant would not have been injured had he observed instructions not to remove the hood from the cutting blades until he had determined that they were not revolving. In Sullivan, Administrator v. Davidson, 183 Kan. 713, 332 P. 2d 507, it is stated: “The evidence and physical facts of this case lead to but one conclusion— had Gene handled the pipe in the normal and ordinary manner it would not have come in contact with the electric wire. His manner of handling it fell below the standard to which, under the circumstances, a reasonable man should have conformed for his own protection and to save himself from harm. Had it not been for his own contributory negligence death would not have resulted. Under the wrongful-death statute (G. S. 1957 Supp. 60-3203) an action may be maintained by the personal representative of the deceased only in cases where the deceased, had he lived, could have maintained an action against the alleged wrongdoer.” (p. 719. Emphasis supplied.) There is but one conclusion that can be drawn from the evidence, the appellant was guilty of negligence which caused his injury and bars a recovery from his employer for damages. Appellant relies primarily on the case of Harvey v. Palmer, 179 Kan. 472, 296 P. 2d 1053. The case is not in point. In that case a shield, which had been placed over a power take-off for reasons of safety only, had been removed by the defendant. It was inherently dangerous to use the equipment without the shield. The injured employee did not know that the power take-off without a shield was dangerous. The judgment is affirmed. APPROVED BY THE COURT. Fontron, J., not participating.	[ -16, 108, -104, -115, 12, -30, 104, 90, 81, -123, -27, 19, -49, -33, 13, 97, 103, 93, 117, 33, 84, -78, 85, -25, -62, 123, -15, -51, -71, 107, 100, 20, 77, 0, 10, -43, -94, -128, -59, 28, -50, 4, -117, -18, 93, 2, 54, 106, 86, 79, 53, 47, -5, 106, 29, -49, 46, 36, -21, 45, -111, -79, -94, 5, 127, 18, -94, 6, -100, 37, 88, 46, -104, 57, 32, -8, 114, -76, -109, 116, 35, -87, 12, 102, 98, 51, 29, 79, 108, -104, 15, 95, 29, -89, -120, 16, 51, 10, -97, -107, 82, 18, 22, 118, -5, 21, 15, 104, 7, -125, -108, -110, -113, 16, -100, -117, -21, -105, 48, 117, -36, -86, 92, 69, 112, 19, -61, -45 ]
The opinion of the court was delivered by Porter, J.: In an action under the workmen’s compensation law, plaintiff recovered judgment, and defendant appeals. Plaintiff was in the employ of the Hutchinson Egg Case Filler Company; that company and the Hutchinson Box Board and Paper Company occupied adjoining tracts of land, upon which their factories were located, a space of about, sixty feet separating their main buildings. At each factory there was a platform dock, and these were connected by a runway -over which strawboard and other material used in the egg case fil,ler factory were conveyed from the box board factory. The employees of defendant would go over this runway, where they would get trucks loaded with the strawboard' and take them across to the defendant’s factory. The runway crossed over a switch track located between the two factories; and whenever a box car happened to be on the switch track, the floor of the car would be used as a part of the runway, a sheet of steel about six feet square being laid between the car and the defendant’s dock, and the space between the car and the box board company’s dock being bridged in the same way, so that a continuous passage could be had between the two factories. On the day plaintiff was injured, he was sent to the box board factory to get a truck loaded with strawboard weighing about twenty-four hundred pounds, and with the help of an employee of the box board company, was returning by way of the connecting runway when the sheet of steel between the defendant’s dock and the floor of the box car slipped, throwing plaintiff between the car and the dock; the truck fell upon him and he sustained serious injuries. The defendant demurred to the evidence on the ground that plaintiff was not shown to have received his injuries while “on, in or about” the factory or plant where he was employed. It is urged that the court erred in overruling the demurrer. In view of the undisputed'facts, the point hardly rises to the dignity of a serious contention. It cannot be said that the facts bring the case within the doctrine of Bevard v. Coal Co., 101 Kan. 207, 165 Pac. 657, where it was held that a demurrer to the petition was properly sustained because the accident did not occur on, in or about a mine, within the meaning of the compensation act. In that case the defendant operated two open-pit coal mines, a quarter of a mile apart. The workman was a messenger and had left one mine on an errand and had not arrived at the other when he was injured on the premises of a railway company which lay between the two mines. In another recent case, Hicks v. Swift & Co., 101 Kan. 760, 168 Pac. 905, the same question arose where the injured workman was employed to drive a truck for the delivery of meat from the defendant’s packing house in Kansas City, Kan., to its customers in Kansas City, Mo., and was injured by a box of meat falling on him while he was making a delivery several miles from the packing house. It was held that he was not injured on, in or about the factory where he was employed. In the present case plaintiff, at the time of his injury, was within a few feet of the dock which was a part of the defendant’s factory. Under the instructions of his foreman, he took a previously defined route between the two factories over a connecting way which was used in his employer’s business. We think the entire runway from the defendant’s factory over to the factory of the box board company was within such close proximity to the defendant’s place of business, and so used as part of it, that if the injury had happened under the same circumstance, but on the other side of the box car, or on the other end of the runway, or even on the dock of the “other factory, it might well be said that the plaintiff was injured while in, on or about the factory and premises of his employer. The plaintiff was earning, at the time of his injury, a weekly wage of $13. In answer to special questions, the jury found that he was not totally incapacitated, but was incapacitated to the extent of “about 50 per cent,” and that he will be able to earn in the future, in some suitable employment, “about 50 per cent” of his former wages. While the record does not show the precise number of days he was totally disabled, it is practically conceded by both parties that he was totally incapacitated for the period of about 26 weeks. Under the statute he was entitled during total disability to one-half his usual earnings, which would amount to $169. It is conceded that the defendant paid him during this period $168.84, which is substantially the full amount for the time, he was totally disabled. The jury assessed the amount of his recovery at $1,768.84, less $168.84, or $1,600. The defendant contends that the special findings show that the general verdict is for an excessive amount. The contention is based upon tjie two findings of the jury that the extent of the plaintiff’s disability, is “about 50 per cent.” Of course, if the jury meant by these findings that he was disabled to the extent of one-half of his earning capacity and would be able to earn in the future in some other suitable employment one-half of his usual wage, the judgment is excessive, because, after allowing for 26 weeks’ total disability, there remained 390 weeks for which compensation should be allowed at 50 per cent of the difference between what plaintiff was earning before the injury and what he would earn afterwards, which would be $3.25 per week, or $1,267.50. The verdict was for $1,600. The plaintiff cites authorities defining the word “about” as meaning more or less than a definite quantity, and holding that there is no fixed rule for determining the degree of contraction or expansion which may be applied to the term “about.” It is conceded that the general verdict is based on about 63 per cent of total disability, and plaintiff insists that in order to harmonize the special verdict with the general verdict, the expression “about 50 per cent” must be held to include 63 per cent, which is the amount they allowed. We cannot agree with this contention. It is obvious that the jury meant that plaintiff was incapacitated by his injuries 50 per cent, and would be able to earn in the future, by some suitable employment, that per cent of his former wages. It is impossible for a jury to determine the precise extent of disability sustained in cases of this kind; it can only be approximated, but where in attempting to fix the extent of disability, the jury do not state the exact amount of wages which, in their opinion, plaintiff will be able to earn, or the amount of wages he will earn less than- his former wages, or, in other words, do not fix the amount of his disability in dollars and cents of earning capacity, there is only one way they can approximate the extent of the disability or loss of earning power, and that is by stating it in the form of a fraction or percentage. When they said “about 50 per cent,” they meant the same as if they had said “about one-half.” If they had intended to find the disability to be 63 per cent, they would not have used the expression “about 50 per cent.” It is clear that the general verdict is excessive, and that the correct amount is a mere matter of computation. After the motion for a new trial had been overruled, defendant offered to show that it employed a doctor to attend plaintiff and also became liable for his hospitaL expenses. The court thereupon ordered a stay of execution on the judgment until it was shown that these bills, to the amount of $216.65, had been paid and the defendant released from liability. Without any claim that the services were not rendered or that the charges were not proper, plaintiff prosecutes a cross appeal based upon the summary manner in which the court disposed of the matter, and contends that it was unfair to him for the court to make the order without the formal introduction of evidence, and also that it was a question which should have been submitted to the jury. The main purpose of calling a jury in a compensation case is to determine disputed questions of fact raised by the pleadings, and the issues are usually confined to the inquiry whether plaintiff’s injuries were occasioned by an accident arising out of and in the course of his employment, and particularly to the question of the extent of his disability. No issue was raised by the pleadings involving the right of defendant to have credit for the expenses incurred for medical care furnished the plaintiff. But if the plaintiff received the benefit of the services furnished, justice and fair dealing, as well as the provisions of the statute, require him to credit the judgment with the amount of thé expense, or to pay the expense himself. The spirit and purpose of the compensation act will not permit him to take any technical advantage of the manner in which the order was made. In a similar situation in the case of Bundy v. Products Co., 103 Kan. 40, 43, 172 Pac. 1020, the plaintiff was required to remit from the judgment the amount of a like claim under the provisions of section 5906 of the General Statutes of 1915, which section declares that “in fixing the amount of the payment, allowance shall be made for any payment or benefit which the workman may receive from the employer during his period of incapacity.” (To the same effect, see Cain v. Zinc Co., 94 Kan. 679, 146 Pac. 1165.) The judgment will be modified by reducing it to tfye amount which the plaintiff is entitled to recover for 390 weeks at $3.25 a week. In all other respects the judgment and orders of the trial court are affirmed.	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The opinion of the court was delivered by Porter, J.: The action was for damages for personal injuries resulting from defendants’ negligence. Plaintiff recovered, and the defendants appeal. The defendants operated a factory some distance north of the city of Wichita, and carried some of their employees from Wichita to the factory and back again by means of a large motor truck. It was charged in the petition that on February 9, 1917, at about 6 o’clock in the morning, plaintiff was riding a motorcycle coming south along the west side of a road known as Lawrence avenue, leading into the city of Wichita, when defendants’ truck going north on the east side of the roadway suddenly passed over to the west side and ran into plaintiff’s motorcycle, by which he sustained injuries resulting in the loss of one leg. The answer alleged that defendants’ truck was properly traveling on the east side of the roadway, that plaintiff was wrongfully on that side and ran into the truck. There was a wide conflict in the evidence. The plaintiff and a young man who was riding behind him on the motorcycle testified that the speed of the motorcycle was 15 to 20 miles an hour; that they saw the truck approaching, but thought it was farther away; that the truck appeared to be coming directly up the center of the' road; and that a few feet before they came together, the truck swung toward them to the west side of the road. Plaintiff’s other witnesses concerning the accident were three persons who were about 200 feet from the place, and another who drove up ,just after the accident. They testified, in substance, that they traced the truck by its tracks from where it backed up after the collision, and these showed it had gone clear to the west side of the roadway; also that the blood on the ground and the broken glass from the windshield of the truck were on that side of the road. The defendants’ witnesses were the driver of the truck and ten others of the twenty-nine persons on the truck at the time of the accident. The driver testified that the truck, which weighed 4,400 pounds, was traveling at .the usual speed of from 10 to 12 miles an hour, and was all the time on the east side of the road; that he first saw the plaintiff nearly a half mile away coming on the east side of the road; that when he saw that plaintiff was not going to turn out, he turned still further to the east in order to avoid a collision, and used all the power at his command in trying to stop instantly; and that to the best of his opinion the motorcycle was traveling about 35 or 40 miles an hour. He testified that the tracks of the truck on the west side of the road were occasioned by his effort to turn • around after the accident for the purpose of taking plaintiff to a hospital; that just as he got across the center of the road, other cars came up and other persons offered to take plaintiff away; that the witness then backed the truck to the east side of the road; and that the glass in the windshield which had been shattered by the collision fell out on the west side of the roadway while he was attempting to turn around. His statements were corroborated by the ten other witnesses. The physicians who attended and operated upon the plain tiff testified to a scalp wound six or seven inches long across plaintiff’s head into the bone, but the bone was not fractured; the break in the thigh was a compound comminuted fracture. The wound on the head was sewed up and the limb placed in a temporary splint for observation to discover whether the blood vessel was - involved, and the case was allowed to rest until the physicians were satisfied that amputation was necessary; the accident happened on Friday, and the limb was amputated on Sunday. The plaintiff was unconscious when the physicians first saw him, and the wound was sewed up and dressed without an anaesthetic. At the second operation an anaesthetic was used. The plaintiff was in the hospital for four weeks; had some “little trouble that did not heal,” and for a while he came back every day, and after that every three or four days; it finally healed up sometime about the middle of the summer. The physicians testified, also, that about an eight-and-a-half inch stump was left on the thigh, and that in such a case a wooden leg can be easily adjusted, as well as it is possible to adjust an artificial limb. The jury returned a verdict in plaintiff’s favor for $26,000, and made a number of special findings, all of which were against the contentions of the defendants. There was a motion to set aside certain of the findings as against the evidence, and for a new trial on the ground that the verdict was against the evidence and was the result of prejudice and passion and misconduct of the jury. On the hearing of the motions, affidavits were presented to show misconduct of the jury, and counter affidavits were filed by the jurors. The alleged misconduct of the jury goes out of the case because the conflicting evidence has been passed upon by the trial court in overruling the motions. In passing upon the motion for a new trial, the court required the plaintiff to remit $11,000, which was done, and the court overruled the motion and entered judgment for the sum of $15,000. There is some contention that the findings are not supported by sufficient evidence, and that they are contrary to the evidence, but the argument resolves itself into a mere discussion of the weight of the evidence. Since it cannot be said that there was riot some testimony to support the findings, we pass to a consideration of the real question, which is whether the verdict appears from the record to be the result of prejudice and passion. At the time he was injured, plaintiff was a strong, healthy man, 22 years of age, a high-school graduate, and was employed in a bank, where he received wages of $10 per week. The defendants insist that the amount of the verdict, together with the great reduction which the trial court required before it would refuse a new trial, and the whole record, establish the fact that the verdict was the result of passion and prejudice. In A. T. & S. F. Rld. Co. v. Cone, 37 Kan. 567, 15 Pac. 499, the injuries sustained by plaintiff were substantially those suffered by plaintiff in the present case. The jury returned a verdict for .$50,000, and the court required a remittitur of $25,000. It was held to be obvious that the court must have found that the verdict was rendered under the influence of passion and .prejudice. The jury, however, had manifested in another way its prejudice, by answering “don’t know” to several special questions properly submitted by defendant and upon which there was evidence which would have supported a finding either way. In reversing the judgment, stress was laid upon the conduct of the jury, which, with the excessive amount of the verdict and the large reduction required by the trial court, was held to show prejudice and passion. The attitude of the court in determining this question, and the rules which generally control, are quite fully set forth in the opinion in Argentine v. Bender, 71 Kan. 422, 80 Pac. 935, (a suit for personal injuries against a city) where the verdict was for $7,500, and the trial court required plaintiff to remit two-thirds of the amount, but made a finding or statement that the error of the jury in fixing the amount of the damages did not permeate the entire verdict, but only affected the amount. By a divided court, it was held that prejudice and passion did not appear. The opinion cites the former decisions establishing these principles: (1) “That the allowance of excessive damages, not occasioned by passion or prejudice, does not require a new trial, but may be remedied by the remission of the excess”; (2) “that any excess due to unfairness of the jury is incapable of elimination by this means, and vitiates the entire verdict.” (p. 424.) In the opinion it was said: “This court must enter upon the consideration of this case with the assumption that the evidence could not sustain the recovery of a greater ámount than $2,500. This is conclusively settled for the present purpose by the action of the district court. The mere fact that the jury in estimating plaintiff’s injury so far exceeded this limit must be regarded as having some tendency to show unfairness. If aided by anything in the evidence or elsewhere in the record tending in the same direction, or possibly if not offset by something of a contrary tendency, this fact alone might justify a conclusion that the jury were influenced by passion or ■prejudice, and require a reversal. On the other hand, the very great departure from a proper amount should be otherwise accounted for, if a reasonable basis for so doing can be found.” (p. 425.) • In casting about for some theory upon which to explain the action of the jury without imputing to them unfair motives, the court found it in the “meagerness of the instructions given to them as a guide to the amount of recovery.” (p. 425.) By a divided court, the judgment was affirmed. Again this court divided upon the question in Lupher v. Railway Co., 86 Kan. 712, 122 Pac. 106, where the trial court refused to approve a verdict for $17,000 for the loss of a leg and required plaintiff to remit $4,000 and rendered judgment for $13,000. The majority held that there was nothing to show that the excessive amount was caused-by passion or prejudice of the jury. We find difficulty in drawing any distinction between that case and the present one. We must start with the assumption that the trial court, placed in a position far more favorable than is this court for discovering whether or not the original verdict was tainted with prejudice and passion, determined that question against the defendants’ contention, holding, however, that the amount of the judgment was excessive. In such a situation, it becomes the first duty of the trial court to determine whether the excessive verdict has been rendered as á result of prejudice and passion which deprived the defeated party of a fair trial; and where the court has reason to believe this to be the case, the taint cannot be removed, nor the error cured, by merely reducing the verdict to an amount which the court thinks would compensate the injured party, if he is entitled to recover. The numerical weight of the positive testimony was largely in favor of the defendants as to the manner in which the accident happened. This is the only circumstance apparent from the printed record, aside from the amount of the judgment and the very large amount of the reduction, which may be said to make the question somewhat close. Here, again, we are confronted with the fact that the trial court saw and heard the witnesses and must have been convinced that the error of the jury in fixing an excessive amount of damages did not permeate the entire verdict. We conclude that it is our duty to affirm the judgment, and it is so ordered.	[ -16, 104, -16, -81, 10, 106, 42, -102, 49, -91, 36, 115, -83, -55, 5, 105, -9, 29, -44, 43, -11, -77, 22, -112, -110, 115, -5, -51, -67, -53, 108, -10, 76, 32, 74, -107, -90, -56, 69, 92, -50, 20, -87, -24, 89, 8, -72, 122, 22, 79, -15, -114, -61, 106, 28, -57, -83, 40, 43, -84, -47, -15, -64, -123, 127, 18, -95, 36, -98, 37, -40, 29, -100, 49, 40, 104, 114, -90, -128, -12, 97, -119, 12, 38, 102, 33, 21, -51, -20, -104, 38, -70, -83, -89, 52, 17, 25, 1, -98, -99, 123, 18, 7, 126, -6, 29, 93, 104, 7, -53, -76, -79, -49, 50, -104, -115, -21, -121, 50, 113, -40, 50, 95, 69, 114, -101, -97, -98 ]
The opinion of the court was delivered by West, J.: This was an action to recover a commission for the sale of real estate. The plaintiff lived at Plains, Kan., and the defendant at Fairfield,-Iowa. After considerable correspondence touching the listing and sale of the land in controversy, the plaintiff asked for the exclusive sale until April 1, 1916, saying that in that event the more the land brought the more his commission would be. After -being advised that the plaintiff had listed the land at $12.50 an acre, the defendant wrote that he had raised the price “to $2,400 cash . . .” till January 1, if not sold before if sold will let you know,” to -which the plaintiff replied that he was pleased so to list the land. The defendant, on August 14, 1916, wrote the plaintiff as follows: “Will take $2,400.00 net, $1,200.00 cash. Balance 1, 2, 3 years secured by first mortgage at 6 per cent per annum until Jan. 1, 1917, and will notify you if sold sooner.” Various offers were from time to time submitted by the plaintiff, none of them meeting the terms of the quoted letter. But in the latter part of December he found a purchaser at $2,500, which price would leave him a commission of $100. He wired this offer to the defendant by night message on December 30, and confirmed it by a message the following day, which the defendant testified he received about ten o’clock on the night of the 31st. In the meantime, the plaintiff had written on the 27th concerning a certain offer, saying that he would try to make a sale at the price and terms theretofore given him. Oh the back of this letter, under date of December 29, the defendant wrote: “Yours received and will say in reply that I think the land is sold if not will let you know as soon as possible.” This was mailed at Fairfield, Iowa, December 29, and postmarked at PÍains, “Dec. 31, 7 a. m. 1916. Rec’d.” On January 2, the plaintiff wrote for an abstract and the name of the defendant’s wife. On the back of this letter the defendant wrote: “This letter received and will say you are too late as I received money on the land the 22 of Dec., 1916.” The defendant testified that he received some money about the 28th of December; that he sold the land on the 22d, but did not get the money until about the 28th. He forgot to bring the check with him. •. “Q. How did it come you did n’t notify him, if you sold this land on the twenty-second, until the twenty-ninth? A. I didn’t have no papers yet, so was n’t sure whether it''was sold then or not. “Q. You was n’t sure whether it was sold or not? A. No, sir, not until the twenty-ninth, when I got the papers, and then I knew it was sold. “Q. You did n’t know then that the land was sold on the twenty-second of December, but you did know it was sold on the twenty-ninth — is that it? A. Yes, sir. “Q. In other words, you wanted Mr. Edwards to keep right on trying to find you a purchaser for this land, in case you did n’t get your deal closed up with Mr. Elliott? A. I wanted to be fair. If it was n’t sold then, I wanted him to make a deal on it.” The letter of August 14 constituted the plaintiff the defendant’s agent to find a purchaser for the land at the price named any time up to January 1, 1917, unless notified that the land had been sold. The plaintiff testified that he sold the land a day or two before he received the notice from the defendant, and that when he wrote the letter of December 27 he had not sold it; that he received back his letter with the defendant’s communication written on the back thereof on December 31, which was Sunday; that he probably received it about eight o’clock on the morning of that day; that he delivered the night-letter message to the telegraph company at six o’clock, Saturday night, December 30. On these matters there is no dispute. And so it appears that when he received the notification that the land had probably been sold, he had already complied with the terms of his agency and had found a purchaser ready, able and willing to take the land on the terms set forth in the letter of authority. This was all he was required to do. (Davis v. Lawrence, 52 Kan. 383, 34 Pac. 1051; Sandefur v. Hines, 69 Kan. 168, 76 Pac. 444; Marlatt v. Elliott, 69 Kan. 477, 77 Pac. 104; Helling v. Darby, 71 Kan. 107, 79 Pac. 1073; Long v. Thompson, 73 Kan. 76, 84 Pac. 572; Green v. Fist, 89 Kan. 536, 132 Pac. 179; Lyman v. Wagner, 90 Kan. 12, 132 Pac. 988; Braniff v. Baier, 101 Kan. 117, 165 Pac. 816.) The agency was not revoked by the mailing, but, if at all, by the receipt of the letter. (2 C. J. 539, and cases cited.) . Had the landowner desired to notify the agent that his services were no longer needed, and had he then sent a note in writing to the agent by a messenger, and had the agent, before the messenger reached him, found a purchaser in accordance with the terms of his agency, he would be entitled to his commission. According to the undisputed facts, the plaintiff made- out a case; the judgment therefore is reversed, and the cause remanded with directions to enter judgment in plaintiff’s favor for the sum sued for.	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The opinion of the court was delivered by Burch, J.: The action was one to recover the balance due on account for merchandise sold. Included in the account was the price of a wire cable. The defense was that the cable was-not of good quality, did not perform the work expected of it, and that in such cases a custom existed in the Butler county oil field to make adjustment of the price, which the plaintiff refused to do. The defendant prevailed, and the plaintiff appeals. Cables .of the kind in question were articles of merchandise adapted to various uses, were kept in stock and sold by dealers, in reels, as they came from the manufacturers, and were not warranted by the dealers. There was evidence that a good cable, when used for drilling oil and gas wells, ought to drill substantially its length. It seems that quite a number of cables sold in the Butler county field, where the. defendant operated as a drilling contractor, did not do this — probably on account of handicaps of the steel manufacturing industry imposed by the war. Some manufacturers, and some dealers by arrangement with the manufacturers, adopted a practice of “making good” their cables by adjustment of the price after wearing quality had been demonstrated by use. The plaintiff had not adopted the practice. The only adjustment it ever made was made with a drilling contractor, Roy Elliott, because of an overcharge. When the defendant complained of the cable in question, he told the plaintiff’s manager that the Oil Well Supply Company, another dealer, had made adjustments for him on a fifty-fifty basis, and the plaintiff’s manager said he would try to obtain an adjustment by the manufacturer of the cable. The manager testified that he sent to the manufacturer the pieces of the cable brought in by the defendant to prove its poor quality. The manufacturer passed the samples through all the tests, reported that the cable was up to standard, and refused to make any adjustment. The cable handled by the plaintiff was manufactured by Broderick & Bascóme. The defendant testified he knew dealers did not warrant cables, and that adjustments were made, not by the supply houses, but by the manufacturers. He knew of no adjustments having been made by Broderick & Bascóme on lines sold by the plaintiff, but said the Broderick & Bascomé representative had made some adjustments. The Oil Well Supply Company, selling the Leishin cable, had made .some adjustments for him, and he knew some adjustments had been made through the National Supply Company. James Davis, J. L. Henderson, Roy Elliott,'and C. E. Mills, drilling contractors in the Butler county field, and purchasers of cables, testified to the existence of a custom to make cables good by adjustment. Davis said he knew of no adjustments having been made by dealers in cables. He bought cables with the understanding — but without anything being said — that if they did not do a reasonable amount of work an adjustment would be made. He testified further, as follows: . “Q. You knew that when you bought your line or any line, that it was sold without warranty? A. No, sir. “Q. Did your company that you bought your line from warrant it to you? A. Well, they sold it to me with the understanding that if it did not give satisfaction they would make an adjustment. “Q. In other words, there was no custom; you relied upon that contract, didn’t you? A. Yes, sir.” Testifying further with reference to the basis of adjustment, the witness said.: “I would judge that 100 feet of hole for every 100 feet of wire would be reasonable.” Henderson testified that he bought cables in carload lots from J. J. Prouty & Co., dealers at Parkersburg, W. Va., and had an understanding with them that they would make their cables good — that is, if the line did not do a reasonable amount of work, an adjustment of the price would be made. Adjustments had been made for him by the Oil Well Supply Company and by Prouty. He would notify Prouty, and Prouty would send a representative. He knew of other adjustments, but not by the plaintiff. Elliott said he had an adjustment with the plaintiff, but that there was a mistake in the account. Before he purchased, he inquired if the plaintiff would stand back of its lines, and on being informed by the plaintiff’s clerk that it would, he purchased on the strength of what the clerk said. Afterwards, the plaintiff’s manager told him the clerk was without authority to say what he did. Elliott also testified he had an adjustment with the National Supply Company. The National Supply Company told him it would report to the manufacturer, and if the manufacturer would allow credit, he would get the benefit of it. He testified that the National Supply Company had made other adjustments. The method was for the supply company to notify the manufacturer, and if the manufacturer allowed credit, credit would be given. Mills testified he had never had an adjustment in Butler county. He had heard of the Continental Supply Company making adjustments in different places, but not in Butler county. He knew nothing about the custom in the Butler county field. No dealer in cables who knew it to be the settled, uniform and universal practice for dealers to make cables good by adjustment was produced as a witness for the defendant. ' On the other hand, the managers of five supply companies engaged in the business of selling cables, called as witnesses for the plaintiff, had no knowledge of any such cüstom. The manager of the Oil Well Supply Company said there was no established rule, but that his company had made adjustments. The manager of the National Supply Company said his company did not make adjustments. His company handled the Roglin cables, and the Roglins (manufacturers) had made one settlement. The manager of the Continental Supply Company said he knew of no usage or custom whereby his company was expected to make good, defects in the lines it sold. His company was not a manufacturer; it was simply a dealer, which purchased from the manufacturer. Drilling contractors knew the lines as well as the dealer, and the lines were sold without any warranty or guaranty whatever. The manager of the FrickReed Supply Company had been in business in El Dorado, in Butler county, for twenty months. He knew of no custom of making rebates for defective lines, and had never heard that such a custom existed before he came to El Dorado. The manager of the Atlas Supply Company testified that cables were used for hoisting, in bridge work, in mines, and in running machinery. Lines his company handled were sold • without guaranty, and purchasers were required to sign receipts to that effect. The court instructed the jury that the custom would be binding if established by a preponderance of the evidence. Persons are presumed to contract with reference to a cus tom or usage which pertains to the subject of the contract. (Smythe v. Parsons, 37 Kan. 79, 14 Pac. 444.) To constitute a custom which tacitly attends the obligation of a contract, the habit, mode, or course of dealing in the particular trade, business, or locality, must be definite and certain; must be well settled and established; must be uniformly and universally prevalent and observed; must be of general notoriety; and must have been acquiesced in without contention or dispute so long and so continuously that contracting parties either had it in mind or ought to have had it in mind, and consequently contracted, or presumptively contracted, with reference to it. The requisites of a good custom must all be established by evidence which is clear and convincing. The very nature of the subject is such it is not enough that the evidence on the side of the existence of the custom merely preponderate— merely overbalance in some degree the weight of evidence on the other side. It must be of such cogency as to satisfy the mind and generate full belief. “The court charged the jury that the custom may be established by the preponderance of the evidence. In this there is error. ... A custom cannot be said to be an established one if it is in serious dispute and can only be determined by carefully and nicely adjusting the scales to ascertain which side preponderates. The character and description of evidence admissible for establishing the custom is the fact of a general usage and practice prevailing in the particular trade or business, and not the opinions of witnesses as to the fairness or reasonableness of it. While many early cases held that the custom could not be established by one witness, this rule has been almost universally departed from. It is nevertheless true that the custom must be proved by evidence sufficient to satisfy the jury clearly and convincingly that such a usage existed as can fairly be presumed to have entered into the intention of the parties when they entered into the contract. The character of the proof must be clear, cogent, and convincing as to the antiquity, duration, and universality of the usage in the locality where it is claimed to exist. . . . Where the evidence is uncertain and contradictory, the custom is not established, and the court should so instruct the jury.” (Penland v. Ingle, 138 N. C. 456, Annotated Reprint, 367, 368.) The factum probandum, existence of the custom relied on, does not consist merely of isolated instances or occurrences. It is rather the comprehensive result of a series of similar instances, satisfying the conditions necessary to a good custom, and so may be testified to directly. (3 Wigmore on Evidence, 1 1954.) The grounds of a witness’ knowledge may, however, be ascertained, and when the facts upon which knowledge assumes to rest are disclosed, the propriety of the inference or conclusion is disclosed. In the case of Scudder v. Bradbury, 106 Mass. 422, the following illustrative instruction given the jury by the trial court was approved: “It does not show a usage of trade to show that many persons, or a majority of persons, engaged in the business, practice in a particular mode. To constitute a usage of trade so as to have it affect the contract, the practice must be universal. If it is sometimes practiced and sometimes not, although it may be more frequently done than not done, that does not make what in law is a usage, which enters into and makes part of a contract. It must be the mode in which persons in that trade do their business. The usage must also be uniform. If different persons in the trade practice differently, it is not a usage, even though more persons practice one way than do another.” (p. 42'4.) Turning to the testimony of witnesses for the defendant, Davis had no knowledge of any instance in which the claimed custom had been practiced, and said there was no custom involved in his purchases, but an understanding with the seller, on which he relied. Henderson’s knowledge was based on his own course of dealing with a foreign concern, and with the one local company which confessedly made adjustments. Elliott claimed he took an express warranty when he dealt with the plaintiff, and he absolved dealers from duty to allow credits unless the manufacturers allowed them. Mills knew nothing of any adjustments in Butler county. The defendant himself rested the duty to adjust and allow credit on the manufacturer and not on the seller,- and so put his defense out of court. Statements of some of the witnesses, that they knew or had heard of other adjustments, were valueless because of the confusion in practice of both dealers and drillers, and for other obvious reasons. The result is, considering the defendant’s evidence in the most favorable aspect, it failed to establish any single element of a good custom, binding the plaintiff to credit the defendant’s account with any sum. It was impossible that there should be one practice for buyers and a different practice for sellers, and if the evidence on behalf of the plaintiff be given any credence whatever, the existence of the claimed custom was overwhelmingly disproved. The writer would not suffer the custom to be recognized judicially, even if duly established. The effect of the custom would be to attach a special kind of warranty to an ordinary sale of a common chattel manufactured and sold for general use, contrary to the settled law of sales. In the writer’s judgment, the rules of law governing common, commercial transactions ought themselves to be certain, uniform, and universal, and not subject to local or particular exception. In the case of Clark v. Allaman, 71 Kan. 206, 231, 80 Pac. 571, this court considered the function of usage and custom, and reached the conclusion that evidence of local customs,.contrary to established principles of law, may not be received. In the case of Hopper v. Sage, 112 N. Y. 530, Mr. Justice Peckham, speaking for the court, said: “Usage and custom cannot be proved to contravene a rule of law or to alter or contradict the express or implied terms of a contract free from ambiguity, or to make the legal rights or liabilities of the parties to a contract other than they are by the terms thereof.” (p. 535.) In Cooley’s note to Blackstone’s discussion of the subject of particular customs may be found the following pertinent observations : • “The most serious question pertaining to usages is, whether they are admissible in any case when they oppose or alter a general principle or rule of law, and upon a fixed state of facts would make the legal rights or liabilities of the parties other than they are by the common law. We think we are justified by the authorities in answering this question in the negative. ‘Nothing,’ says Ch. J. Gibson, ‘should be more pertinaciously resisted than those attempts to transfer the functions of the judge to the witnesses’ stand, by evidence of customs in derogation of the general law, that would involve the responsibilities of the parties in rules whose existence, perhaps, they had no reason to suspect before they came to be applied to their rights.’ (Boulton v. Colder, 1 Watts, 360.) . . . ‘Though usage,’ said Ch. J. Kent, ‘is often resorted to for explanation of commercial instruments, it never is, nor ought to be, received to contradict a settled rule of commercial law.’ (Frith v. Barker, 2 Johns, 335.) . . . ■ A commercial usage is a long and uniform practice, applied to habits, modes, and courses of dealing. It relates to modes of action, and does not comprehend the mere adoption of certain peculiar doctrines or rules of law. It may operate to give effect to contracts different from that which the common law would have done, but the consequent variation of the legal rights of the parties is only the result of a mode of dealing. The adoption, however, of a mere doctrine as to the rights and obligations of the parties under a contract, which doctrine is contrary to the rule of the common law on the subject, as, for instance, that a warranty should be implied in a sale of chattels where the common law implied none: Barnard v. Kellogg, 10 Wall. 383; Beckwith v. Farnum, 5 R. I. 230; Coxe v. Heisley, 19 Penn. St. 243; Wetherill v. Neilson, 20 Penn. St. 448; Dickinson v. Gay, 7 Allen, 29; Tremble v. Crowell, 17 Mich. 493; or that a warranty should not exist where the common law implies one: Whitmore v. South Boston Iron Co., 2 Allen, 52; is beyond the province of a commercial usage. The distinction has been well said to be somewhat nice: per Chapman, J., in Dickinson v. Gay, 7 Allen, 37; and it certainly has not always been kept in view; but it is believed to be sound, and, if adhered to, will tend to uniformity in the law, and to protect parties against usages of uncertain character and doubtful propriety.” (Cooley’s Blackstone, 4th ed., bottom p. 70 [*77].) The court has not deemed it necessary to decide this very important question in this case. The judgment of the district court is reversed, and the cause is remanded with direction to enter judgment for the plaintiff.	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The opinion of the court was delivered by Marshall, J.: The plaintiff seeks to recover on a peace bond given by the defendants on May 18, 1917, under section 9 of the code of criminal procedure, conditioned that Joe Napier should “keep the peace toward all the people of the state of Kansas and Pearl Rash more particularly and appear at the next regular term of the district court of Gove county, Kansas.” The court sustained a demurrer to the petition, and the plaintiff appeals. .The petition discloses that on July 13, 1917, Napier killed Pearl Rash in Oklahoma and then committed suicide, and that at the next term of court, on October 17, 1917, the bond was declared forfeited. 1. The plaintiff contends that Joe Napier violated the terms of his bond by killing Pearl Rash in Oklahoma. Where was Napier to keep the peace toward-Pearl Rash? Necessarily in the state of Kansas. The laws of this state cannot govern the conduct of those who are in another state. The authority of the state ends at the state line. No law of this state has any effect, of its own force, beyond the limits of the state. (Hilton v. Guyot, 159 U. S. 113, 163; 5 R. C. L. 908; 12 C. J. 438; Story on Conflict of Laws, § 7.) Numerous other authorities might be cited. In re Martin, 80 Kan. 245, 101 Pac. 1006, gives some support to the rule. The law authorizing magistrates to require bonds to keep the peace operates exclusively within the state, and controls the conduct of those who give the bonds while they are in the state, and at no other place. When Napier killed Pearl Rash, if he committed a breach of the peace, it was not against the state of Kansas, but against the state of Oklahoma. The bond that he had given did not cover his actions in that state. Section 7926 of the General Statutes of 1915 reads: “No recognizance to keep the peace shall be deemed to be broken, except in the case of a failure to appear, as hereinbefore provided, unless the principal in such recognizance be, convicted of some offense amounting, in judgment of laWj to a breach of such recognizance.” The petition does not disclose that Joe Napier was convicted of any offense involving a breach of the peace toward Pearl Rash. . 2. The state argues that the failure of Napier to appear at the October term of the district court in Gove county violated the,terms of the bond and justified a forfeiture thereof; and that, as a consequence, the sureties, the defendants in this action, aré liable; but the défendants contend that they are excused from liability by the death of their principal. In 8 Ruling Case Law, page 55, the author says: “Where the principal in a bail bond dies before judgment is rendered against the surety, so as to put it out of the power of the latter to surrender him in execution, the bail is discharged.” (See, also, 6 C. J. 1053.) ■ After diligent search, the court has been able to find but one case involving the suicide of the principal in a bail bond.. That case is People v. Wissig, 7 Daly’s Reports, 23 (New York Common Pleas). There suicide occurred after forfeiture of the bond, but the sureties were held not liable beyond the payment of the .costs that had been incurred. The plaintiff responds to the defendants’ contention by invoking another rule: that the principal in a bail bond cannot, by his voluntary act, bring about a condition which will render it impossible for him to comply with the bond, and his sureties be relieved from liability. It was Napier’s voluntary act that prevented his appearance, and if there is no exception to, or modification of, the rule invoked by the plaintiff, the defendants áre liable; but there is an exception to that rule; it is found in sections 8063 and 8064 of the General Statutes of 1915. Those sections prqvide for the surrender of the principal by his sureties. They had a right to surrender Napier; but when he killed himself, he made it impossible for him to appear in court, or for his sureties to surrender him there, or for the court to take any further proceedings against him. The excuse for the inability of the sureties to produce Napier, as shown in the petition filed by the plaintiff, is a satisfactory one within the meaning of section 8063, and prevents any recovery against the sureties on the bond. The petition shows a sufficient defense to the action, and the demurrer thereto was properly sustained. The judgment is affirmed.	[ -16, 122, -8, 14, 10, 96, 8, -120, 120, -80, -31, 83, -87, 78, 5, 121, 123, 45, 116, 105, -12, -73, 82, -128, -78, -77, 73, -35, -79, 95, -10, -34, 72, 112, 10, 93, 34, 74, -95, -36, -50, 1, -24, -15, 87, 80, 48, 123, 16, 26, 113, 46, -29, 43, 20, 103, -88, 40, -53, -72, -48, 81, -85, 71, -19, 24, -109, 3, -68, 5, -16, 63, -104, 53, 64, 104, 115, 32, -122, 116, 109, -119, 44, -26, 99, 49, -11, -20, -20, -24, 46, 115, -115, -25, -42, 64, 75, 36, -106, -35, 107, 84, 7, 112, -16, 20, 93, -88, 8, -49, -76, -127, 15, 60, -110, -51, -53, 37, 32, 101, -51, -90, 92, 103, 120, -101, -113, -11 ]
The opinion of the court was delivered by Marshall, J.: Nora Grisham, the plaintiff’s wife,, was killed by one of the defendant’s cars. The plaintiff brought this action to recover damages for her death. The court sustained a demurrer to the evidence of the plaintiff, and he appeals. The sufficiency of the evidence to compel its submission to the jury is the question presented. There was evidence which tended to prove the following facts: The defendant operated an electric interurban railroad-in Montgomery county. Mrs. Grisham was killed at a regular stop known as stop foürteen, where a public road crossed the' railroad. There the railroad extended northwest and southeast, and the public road extended north and south across the railroad. To board a car, passengers intending to travel to the southeast would go to the south side of the track, and those intending to travel to the northwest would go to the north side. West of the public road and north of the railroad, there was a pile of dirt, which for some distance near, the track prevented a person, when walking in the public road, from seeing a car approaching from the northwest, but from 50 to 200 feet north of the railroad such person could see an approaching car for a distance of from 600 feet to about one-half mile. Closer to the track, on account of the pile of dirt, the car could not be seen by the person walking, until he was about five feet from the track. When cars stopped, they usually extended clear across the public road. Mrs. Grisham was familiar with the crossing. The car that struck her was one that had just been repaired. It was not carrying passengers, but was on a trial trip in charge of two employees who were not thoroughly acquainted with the operation of cars on the railroad: The car came from the northwest, at about thirty miles an hour, on approximately the time of a regular passenger car coming from the ..same direction. Mrs. Grisham started from her home, about a half mile away, to take the regular passenger car; and when about 200 feet from the crossing, she commenced to run toward it. She could then see the car. On regular passenger cars, the custom of the defendant was to sound two blasts of the whistle at stations at which the car would stop to take on waiting passengers, and to sound two long and two short blasts of the whistle when it would not stop. A young man was waiting at stop fourteen to take the passenger car to the southeast. When the repaired car approached that stop, two blasts of the whistle were sounded, and when still closer, two more blasts were sounded. About 100 yards northwest of the crossing the motorman turned off the power and let the car coast, but he did not apply the brakes until the car struck Mrs. Grisham. The motorman saw her all the time, and she could see the car all the time except when it was concealed by the pile of dirt. The motorman thought bhat she was running to catch his car. Mrs. Grisham attempted to run across the track in front of the car, but was struck by it and instantly killed. There was a dispute in the evidence between the motorman and the young man that was waiting. The motorman testified that when Mrs. Grisham was near the track she stopped and hesitated for an instant; the young man testified that she never stopped, but kept on running. There was sufficient evidence to warrant submitting to the jury the question of the defendant’s negligence. The real point in controversy is the contributory negligence of Mrs. Grisham. The plaintiff contends that this is not a crossing case; that Nora Grisham was not a traveler on the highway trying to beat the car, but that she was an intending passenger going to the proper place to board the defendant’s car; that she saw the car coming, heard the usual signal of the car indicating that it would stop, saw another intending passenger at the station, and was hurrying to the station to board the car; and that, therefore, the stop-look-and-listen rule has no application in this case. These contentions are the foundation of the plaintiff’s argument, but in a number of them he is mistaken. It is a crossing case.' Nora Grisham was a traveler on the highway, and was trying to beat the car to the station; and although she was an intending passenger, her intention did not absolve her from the consequences of her own negligence. This is not a street-car case, and the rules applicable to the contributory negligence of a person crossing in front of a street car do not control. The defendant’s line of railroad extended from some point in Oklahoma, through Montgomery county, into Labette county. Nora Grisham was killed in the country at a crossing of a public highway and a railroad. The rules that control in this action are those that apply to injuries at country crossings of highways and steam railroads. (Snow v. Indianapolis, etc., R. Co., 47 Ind. App. 189, 195; Electric St. Railroad Co. v. Lohe, Admr., 68 Ohio St. 101; Note, 4 Ann. Cas. 451; Note, Ann. Cas. 1913C., 583; 22 R. C. L. 745.) These rules have been followed by this court in Burzio v. Railway Co., 102 Kan. 287, 171 Pac. 351; Schaefer v. Railway Co., ante, p. 394, 179 Pac. 323, and in cases involving crossing an electric interurban railroad on the streets of a city. (Williams v. Electric Railroad Co., 102 Kan. 268, 170 Pac. 397.) In Kirkland v. Railway Co., ante, p. 388, 179 Pac. 362, this language was used: “This court has often said that a person about to cross a railroad track must use his senses, and if he does not, and by reason thereof injury results to him from a moving train, he cannot recover from the company, even if the company was negligent.” (p. 393.) In the last case, the person killed was attempting to cross a steam-railroad track on a street in Ottawa. This court has often said that a person who is injured while attempting to cross a railroad track in front of an approaching train, which he sees, or can see if he looks, is guilty of contributory negligence, and cannot recover for that injury. (Jacobs v. Railway Co., 97 Kan. 247, 154 Pac. 1023; Wehe v. Railway Co., 97 Kan. 794, 156 Pac. 742; Pritchard v. Railway Co., 99 Kan. 600, 162 Pac. 315; Bunton v. Railway Co., 100 Kan. 165, 163 Pac. 801.) In 10 Corpus Juris, page 1111, this language is found: “Reasonable care is required of a passenger in going on or crossing a railroad track for the purpose of reaching or leaving his train, and if he fails to exercise such care, whereby he is injured, he is guilty of contributory negligence.” Numerous cases from twenty-four states are there cited to support that rule. Those cases have not been examined, but in McDonnell v. Osborne, 191 Ill. App. 450, the appellate court of Illinois said: “Where a person intending to become a passenger upon an interurban train was struck by the train while attempting to cross the tracks in front of it, and her own evidence disclosed that she knew of the approach of the train and signaled it before she reached an intervening track which she was obliged to cross, and continued to look at it up to the time she was struck, having misjudged its distance and speed, it was held that contributory negligence was shown as a matter of law.” That rule was followed in Deering’s Adm’r v. Virginia Ry. & Power Co., 95 S. E. (Va.) 405. Mrs. Grisham saw the car, or she could have seen it if she had looked, while she was running to catch it. The plaintiff says that she saw the car and heard the'whistie, and was hurrying to the station to board the car. Mrs. Grisham was negligent. If she had not been negligent, she would not have been injured. Her negligence precludes the plaintiff’s recovery. 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The opinion of the court was delivered by Burch, J.: The action was one for damages for personal injury sustained because of the defendant’s failure properly and safely to guard a machine .as required by the factory act. The plaintiff recovered, and the defendant appeals. The defendant operates a candy manufactory, and the plaintiff lost the index finger and a part of the thumb of her right hand while feeding candy “suckers” info the revolving tollers of a candy-pressing machine. The principal issue was whether or not it was practicable to provide the machine with a guard. The defendant complains because certain evidence was rejected. Some of the evidence belongs to a class which it has been decided is inadmissible; some of it wras too remote, in view of the positive mandate of the legislature to safeguard machines whenever practicable; and the remainder was unimportant. The qualification of an expert witness is assailed. He was abundantly qualified. It is said the expert witness testified to the ultimate fact in issue. He not only gave the facts on which he based his opinion, but he fairly demonstrated the practicability of safeguarding the machine. The defendant’s request that the following interrogatory be submitted to the jury was denied: “At the time of or prior to plaintiff’s injury, was there a guard or upright which could have been secured by defendant and placed on said machine that would have prevented the injury, without impairing the use of the machine?” The only material portion of the' question was answered by a • special finding that a guard which would have prevented the injury would not substantially diminish or impair the usefulness of the machine. That being true, it was the duty of the defendant to supply the guard. The defendant' requested findings as to whether or not guards for the rollers of candy machines are commonly provided, and are provided by manufacturers of such machines. It was not material whether or not manufacturers of such machines, and owners and operators of candy manufactories, were generally ignoring the law.. The defendant’s request for findings respecting the defend ant’s “negligence,” if any, were properly denied, because the sole issue in this respect was breach of statutory duty to supply a guard, and this issue was properly submitted to the jury. The jury returned a verdict for $2,500. The court gave the plaintiff an option to remit $1,000, or submit to a new trial. The plaintiff elected, under protest, to remit, and it is said the size of the verdict indicates passion and prejudice on the part of the jury. The district court necessarily found there was neither passion nor prejudice. -It merely disagreed with the jury respecting the amount which would compensate the plaintiff for her injuries. If the verdict had been approved as returned, this court would not say that the amount of it indicated the jury acted from any improper motive. The judgment of the district court is affirmed.	[ -16, -20, 120, -115, 26, 96, 58, -6, 97, -123, 39, -13, -23, 70, -99, 99, -6, 125, 84, 107, -34, -77, 19, -55, -46, -6, -80, -47, -71, 106, -28, -98, -51, 48, -62, -43, -26, 24, 89, 90, -50, 52, -86, -21, 57, 16, 84, 122, 116, 75, 49, -100, -29, 46, 15, -49, 41, 40, 43, 61, -15, -7, -102, 13, 109, 16, -78, 34, -100, 101, -40, 14, 12, 57, 0, -24, 115, -76, -126, 84, 65, -71, 12, -30, 98, -80, 9, -25, -24, -72, 15, -41, 13, -89, -47, 104, 3, 14, -65, -97, 56, 54, 52, 126, -9, 93, 31, 108, 3, -125, -60, -78, -81, 98, -100, -90, -21, -89, 18, 97, -36, -70, 94, 1, 83, -101, -33, -106 ]
The opinion of the court was delivered by Marshall, J.: The plaintiff brought this action to partition certain real property. The rights of the parties depend on the construction of the will of M. B. Otis. The will is as follows: “Wilsey, Kansas, January 20, 1903. “My wife, Martha Jane Otis to own all the real estate, personal property, notes, mortgages, interests, and bonds, all property that I may possess at my death. “My son, Ora G. Otis to act as administrator. I want him to be admitted without bonds.. > “All properties left at my wife’s death to be divided equally between my six children. “I want my son O. G. Otis to still.act as administrator at my wife’s death.” ' All the parties asked the trial court to construe-the will. The plaintiffs contend that it gave the property therein mentioned to Martha Jane Otis absolutely and in fee, without restriction or limitation. The defendants contend that it gave her a life estate with power of disposition, and that on her death, what was left of the property went to the six children of M. B. Otis. The trial court held with the defendants. The language used in the will is crude, but is easily understood. No one can read the will and get a misunderstanding of it. The testator intended that his wife, during her life, should control and dispose of all the property mentioned in the will exactly the same as if she owned it in fee; but that what was left undisposed of at her death should go to his children. In Brown v. Brown, 101 Kan. 335, 166 Pac. 499, this court said: “A rule for the interpretation of wills, to which all other rules are subordinate, is that the intention of the testator, as gathered from all parts of the will, is to be given effect and that doubtful or inaccurate expressions in the will shall not override the obvious intention of the testator.” (syl. ¶ 1.) (See, also, Ernst v. Foster, 58 Kan. 438, 49 Pac. 527; Blair v. Blair, 82 Kan. 464, 108 Pac. 827.) If this canon of construction, is followed, and it must be, there is not much left to discuss. The will gave to Martha Jane Otis a life estate with the added power of disposition, and it gave the remainder to the six children of M. B. Otis. This construction comes within the rule declared in Ernst v. Foster, 58 Kan. 438, 49 Pac. 527; Postlethwaite v. Edson, 98 Kan. 444, 155 Pac. 802, and Scott v. Gillespie, 103 Kan. 745, 176 Pac. 132. In the opinion in Postlethwaite v. Edson the decisions of this court were reviewed, and that opinion controls in the present action. M. B. Otis died on January 31, 1903, and left surviving him his widow, Martha Jane Otis, and his children, Ora G. Otis, Laura Pirtle, H. M. Otis, C. B. Otis, Mertie Melvin, and Emma Southern. C. B. Otis died on April 26,1913, and left surviving him Lillian C. Otis, his widow, one of the plaintiffs, and Floyd Butler Otis and Clayton Bernard Otis, his children. Martha Jane Otis died, intestate, in 1916. Benjamin F. Vassar, one of the plaintiffs, is a son of Martha Jane Otis by a previous marriage. The trial court excluded Lillian C. Otis from participation in the estate of M. B. Otis'. In that the court erred. She was an heir of C. B. Otis, and inherited one-half of his estate as it would have come to him had he survived his mother. Floyd Butler Otis, and Clayton Bernard Otis, chil dren of C. B. Otis, inherited the other one-half of their father’s estate. Benjamin F. Vassar. inherited nothing. The judgment of the trial court is modified by giving to Lillian C. Otis one-twelfth of the property, and by giving to Floyd Butler Otis one twenty-fourth thereof, and to Clayton Bernard Otis another one twenty-fourth thereof. With this modification, the judgment is affirmed.	[ -14, 108, -40, 125, 24, 34, 10, -40, 113, -63, 36, 83, -1, -38, 20, 41, 114, -67, 81, 105, -44, -125, 7, -125, -46, -13, -109, -43, -79, -35, 117, -34, 76, 32, 42, 21, -26, -62, 65, 20, -114, 64, -118, -31, -47, 98, 52, 43, 84, 70, -43, -97, -77, 46, 25, -29, -24, 46, 73, -80, 80, -72, -114, -121, -3, 19, -79, 35, -104, -57, 72, 44, -40, 49, -128, -20, 115, -74, -122, 116, 107, -101, 44, 102, 99, 19, 45, -17, -40, -104, 14, -13, -83, -89, 22, 88, -117, 73, -65, -67, 117, 64, -121, -8, -17, 21, 92, 108, 5, -113, -42, -127, -115, 62, -112, -117, -5, -109, 33, 117, -49, 32, 93, -61, 125, -109, -97, -98 ]
The opinion of the court was delivered by Mason, J.: M. G. Bissey and Robert C. Campbell brought an action against the city of Marion and its commissioners for a mandatory injunction to compel putting a bridge in condition for travel. A demurrer to the petition was sustained, and the plaintiffs appeal. According to the allegations of the pleading, the bridge was built in 1908 over a creek where it crosses Maple street. Previously, lower bridges had'been maintained there, but had been washed away by floods, in each instance being shortly replaced. The present bridge was built under an agreement between the county and the city, by which the latter was to pay one-fifth of the cost, and.was to provide suitable approaches. Such approaches have been partially constructed on piles placed at each end of the bridge, but they stand about fifteen feet above the level of the street, so that travel thereon is rendered impossible. 1. The demurrer was sustained expressly on the ground that The petition failed to state facts sufficient to constitute a cause 'of action. The defendant asserts that the decision should be affirmed because of a misjoinder of causes of action and of a defect of parties plaintiff, both of which grounds were relied upon. The code provides that “all persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs,” etc. (Civ. Code, § 34, Gen. Stat. 1915, § 6924.) This clearly does not mean that all persons who might join must do so; but it permits two or more persons each of whom suffers a peculiar injury from an obstruction to a street to join in an action for relief. (Street Rly. Co. v. Nave, 38 Kan. 744, 17 Pac. 587; Bliss on Code Pleading, 3d ed., § 73.) 2. The facts alleged seem to amount, either to an actual obstruction of the street, or to the creation of a condition analogous thereto, by a failure on the part of the city authorities to perform the duty of keeping the street fit Tor travel. In the latter case the test of the right of an individual to maintain an action for relief would be substantially the same as in the former. An unofficial plaintiff must have an interest in the matter different in kind from that of the general public, and the usual rule is that to meet this requirement he must own property which abuts directly on the portion of the highway affected, or access to which is cut off by the condition complained of (13 R. C. L. 231-2; Billard v. Erhart, 35 Kan. 611, 12 Pac. 39; Heller v. A. T. & S. F. Rld. Co., 28 Kan. 625), although it is sufficient if ingress and egress be prevented in either direction. (Hayden v. Stewart, 71 Kan. 11, 80 Pac. 43; Highbarger v. Milford, 71 Kan. 331, 80 Pac. 663; Stephenson v. Street Railway Co., 88 Kan. 794, 129 Pac. 1188.) The property owned by the plaintiff Bissey is located about a hundred and fifty feet from the bridge, on a cross street opposite the point at which Maple street terminates. His situation is not different, unless in degree, from that of any other property, owner on that street, and it does not appear that he is within the rule. But the plaintiff Campbell owns a tract of land on one side of Maple street, and on both sides of the creek where it is crossed by the bridge. His property abuts ’on the part of the street which is obstructed, or over which travel is prevented, and by reason of the condition stated he is unable to pass over the street from one part of his land to the other. He is therefore qualified to bring the action, if it is otherwise maintainable. 3. The defendants urge that the manner of dealing with the problem presented by the presence of the creek is a matter to be determined'by them in the exercise of their best judgment— that it is for them, and not for the courts, to decide what action should be taken in that regard. The petition, however, alleges that in failing to afford relief from the condition complained of, and in suffering that condition to continue, the defendants have acted “arbitrarily” and “in abuse of the discretion vested in them.” It is true that the expressions quoted seem very general and are somewhat of the nature of conclusions. But the power of the court to constrain the action of the defendants may depend wholly upon their mental attitude— upon whether, on the one hand, they are using their best judgment, or, on the other, are acting capriciously or arbitrarily. Whether or not their conduct is arbitrary may thus become the ultimate fact in issue. Such a fact is not necessarily .made up, like fraud, of a number of component parts which may be pleaded in detail, and it might be impossible to add much to the mere characterization of the conduct complained of as “arbitrary” without pleading the evidence in its support. A somewhat similar pleading was upheld in Stevenson v. Shawnee County, 98 Kan. 671, 679, 159 Pac. 5. 'Here the physical facts relied upon are set out in considerable detail — the omission for a period of some ten years to take steps necessary to render the bridge usable and the street traversable. We regard the petition as sufficient, when attacked only by demurrer, to raise an issue of fact as to whether the course of the defendants was such as to merit the term “arbitrary.” 4. It is not.alleged that the defendants have now or have had the funds with which to pay for doing the things demanded. Such an allegation has been said to be necessary in a proceeding to compel public officers to put a highway in condition for travel. (18 R. C. L. 241.) In view, however, of the length of time the condition is said to have existed and of the allegation, that the conduct of the defendants has been arbitrary, that matter may well be regarded as one to be put in issue by an answer. 5. It has also been held that injunction may not be invoked where mandamus affords an adequate remedy (22 Cyc. 776), as might perhaps be the ease here. It is quite apparent, however, that the ruling on the demurrer was not based upon that ground. Assuming that mandamus might have been resorted to, we do hot 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. The judgment is reversed as to the plaintiff Campbell, and the cause is remanded with directions to overrule the demurrer to the petition as to him. As to the plaintiff Bissey, the judgment is affirmed. SYLLABUS BY THE COURT. Demurrer to Petition — Overruled as to One Plaintiff — Sustained as to the Other. Where a petition of two plaintiffs states a cause of action as to but one of them, it is proper practice to overrule a general deipurrer thereto as to him, and sustain it as to the other plaintiff. (Filed March 8, 1919.)	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The opinion of the court was delivered by Porter, J.: In a suit for partition the only legal question involved relates to the effect upon the right of other devisees, of a widow’s election to take under the statute instead of under the will of her husband. Hugh A. Allen, a resident of Douglas county, died in June, 1911, and left a will by which he bequeathed to his wife, Mary Allen, all his estate during her life. The remainder was disposed of by the following clause: “After her decease and what remains of my estate, both personal and real, I want divided equally between our three children. Their names as follows: my son (Harvey Preston Allen), my step daughter- (Mary Elizabeth Patee), my daughter (Mary Ella Strahm).” Mary Allen was the testator’s second wife. Harvey Preston Allen and Mary Ella Strahm are children"by the first wife; Mary Elizabeth Patee was the daughter of Mary Allen by a former marriage. The will was filed in the probate court but no further action was taken to have it probated. For more than four years thereafter Mrs. Allen continued to occupy the real estate in controversy, expressing no dissatisfaction with the provisions of the will, and apparently the other devisees assumed that its provisions would be carried into effect. Mary Elizabeth Patee, the stepdaughter, died May 24, 1915, intestate, leaving her husband, the defendant, Clair M. Patee, her only heir at law. A month after the daughter’s death Mary Allen executed a will making the defendant, her son-in-law, the sole beneficiary. A month later proceedings were taken for the probate of the will of Hugh A. Allen, and Mrs. Allen filed her election to take under the provisions of the law of descents and distributions. At this time she was 84 years of age, and Clair M. Patee was making his home with her. In December, 1916, she died, and her will was duly probated. The two children of Hugh A. Allen sued for partition, claiming that Mrs. Allen h^d elected to take under her husband’s will, and that upon her death one-third of the property passed to each of them and one-third to defendant. The answer set up .both the will of Hugh A. Allen and that of Mrs. Allen and alleged that they had been admitted to probate ; that the widow elected to take under the law instead of under her husband’s will, and that the defendant, as sole devisee of Mrs. Allen’s will, became entitled to one-half of the property, and as the sole heir of Mary Elizabeth Patee, who died intestate, he was entitled to one-third of the other half in the estate, and he asked that the property be partitioned, awarding four-sixths of the interest to him and one-sixth to each of the plaintiffs. The trial court held that by reason of the widow’s election to take under the statute “it has become impossible to carry out the intention of the testator, Hugh A. Allen.” Partition was ordered; each of the plaintiffs was awarded a one-fourth interest and the defendant was given a one-half interest. He brings the judgment here for review. To sustain the judgment the plaintiffs urge that the case falls squarely within the principle declared in Fennell v. Fennell, 80 Kan. 730, 106 Pac. 1038, where the rule in this state in regard to the effect upon other devisees of the renunciation by a widow of her husband’s will is thus stated in the opinion: “On the other hand, it is insisted by the defendánts in error that where a widow refuses to accept the provisions of her husband’s will and takes under the law she thereby defeats the purposes of the testator so far as she is concerned Only, and the other provisions still remain in full force and must be administered so as to effectuate the intent of the testator as far as possible. (Allen v. Hannum, 15 Kan. 625; Noecker v. Noecker, 66 Kan. 347; Lilly v. Menke, 126 Mo. 190, 210; 11 A. & E. Encycl. of L. 117.). “The contention of the defendants in error is undoubtedly the law in cases where it can be applied. When, however, its application will result in the defeat of the manifest intention of the testator, and work an injustice to other heirs, it should not be applied. The rule is intended to be operative with reference to the other provisions of the will only when the intent of the testator can be preserved and followed. It seems impossible to do this under the facts in this case. The widow, by electing to take one-half of the land in fee simple instead of a life-interest in the whole tract, completely changed the subject matter upon which the will was intended to operate, and effectually destroyed the manifest plan and purpose of the testator.” (p. 733.) In Pittman v. Pittman, 81 Kan. 643, 107 Pac. 235, the court considered the same doctrine, applied to a different situation, and while not modifying the rule of the Fennell case, supra, affirmed the judgment on the ground that the construction thereby given to the will carried out, as nearly as possible under the circumstances, the testator’s intent. The argument which the plaintiffs make is that the theory contended for by the defendant in determining the intention of the testator leaves entirely out of account the relationship between Mr. Allen and the beneficiaries'named in his will, two of them being his own children, while one was a stepdaughter. It is contended that his desire and intent as shown by thé will was, that after his wife’s death two-thirds of whatever remained of his property should be divided between the plaintiffs, who are his own children, and that it was obviously not his intention that his stepdaughter should, in any event, receive more than one-third of his property. Therefore, it is said that by the election of the widow to take under the law the whole testamentary plan of the testator was nullified. It is urged that the' construction contended for by the defendant leads to an inequitable result and one wholly inconsistent with the evident desire and intention of Mr. Allen. As an illustration, it is said that if Mary Elizabeth Patee had survived her mother, she would have received one-half of the entire estate by her mother’s will and an additional one-third of the other half by virtue of Mr. Allen’s will,,although the stepfather never intended her to have more than one-third of the entire estate. Some stress is laid upon the fact, too, that defendant, who is now claiming two-thirds of the property, is not mentioned in the will, and it is urged that to sustain his claims would effectually destroy the intention of the testator. These are assumed to be the reasons which controlled the trial court in holding that the manifest intention of the testator could not be carried into effect by reason of the widow’s election to take under the statute. On the other hand, the defendant emphasizes the fact that the testator made no distinction in his will between his own children and his stepdaughter; that he mentioned them all as “our children.” Under the previous decisions of this court the law is well settled that where the widow elects to take under the law and not under the will, the remainder of the estate of the deceased will be disposed of according to the will, so far as ttiay be, due regard being paid to the intention of the testator. (Allen v. Hannum, 15 Kan. 625; Noecker v. Noecker, 66 Kan. 347, 71 Pac. 815; Pittman v. Pittman, supra.) In our opinion, defendant’s contentions are correct, and the trial court was in error. The judgment, in effect, disinherits the defendant as ah heir of one of the three devisees mentioned in Mr. Allen’s will. The testator is presumed to have understood that his wife had the right to refuse to be bound by the provision he had made for her and to elect to take under the statute, and with this knowledge he must be held to have intended that the three children which he refers to as “our children” should be placed upon an equality so far as his own estate was concerned, and that each should have one-third of his estate, which he expressly referred to as “what remains of my estate”. after the death of his wife. ’It may seem inequitable that the defendant, the husband of the stepdaughter, not mentioned in the will, and perhaps not in the testator’s mind when the will was executed, should by the widow’s renunciation of the will, and the disposition $he made of her own half of the property, become entitled to two-thirds of the entire estate. But it must be remembered'that one-third of Mr. Allen’s estate comes to the defendant by virtue of his being the only heir at law of Mary Elizabeth Patee, whom the testator placed upon an equality with his own children. After ghe had renounced the Will Mrs. Allen took the title to one-half of the estate to do with as she saw fit. She might have willed all of her half to her own child, and if Mrs. Patee had survived, then the same result would have been reached, and each of the plaintiffs would have received but one-sixth of the estate, instead of one-third, which was doubtless the share Mr. Allen intended they should receive, provided his wife elected to take under the will; and it may be assumed that he expected she would be satisfied with its provisions, and that the other devises were made upon that assumption. If Mrs. Allen had elected to take under the statute and then had died intestate, leaving Mrs. Patee surviving her, the same result would have followed. Mrs. Patee would have taken two-thirds of the entire estate, and upon her death intestate her husband would have inherited the same two-thirds. Within the rule of the authorities above referred to, we think it is clear that the election of the widow does not render it impossible to carry out what may be said to have been the legal intention of the testator. While the possibility of two-thirds of the entire estate going to a stranger was not actually in his mind, it must be regarded as within the legal intent of the testator. Of course,' it was not his intention to deprive his wife of the right to take under the law instead of under the will, because that was beyond hi's power; and while the probabilities are that the situation as it now exists never occurred to him, it is one which results from the law of descents' and distributions. Mr. Allen could have executed a will which would have left half of his property to his own children, and that is all the law permitted him to dispose of absolutely. He might have devised one-third of his estate to the stepdaughter upon condition that the widow elected to take under the will, with a proviso that in case she elected .to take under the statute, the stepdaughter should take nothing under his will. But instead of making that kind of a will, he devised to each of the three children an equal share in all of the' estate which the law permitted him to dispose of. It follows that the judgment will be reversed and the cause remanded for further proceedings in accordance with the views herein expressed.	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The opinion of the court was delivered by Robb, J.: This is an appeal by defendant in a criminal prosecution wherein the jury found defendant guilty of forgery in the second degree, under G. S. 1949, 21-608, and the district court of Saline county pronounced sentence upon defendant to serve not to exceed ten years in the state penitentiary. The notice of appeal was based upon five grounds including the trial court’s finding that defendant was guilty of forgery in the second degree; the court’s orders overruling defendant’s motions for new trial and for arrest of judgment in regard to count I, forgery; and the sentencing of defendant not to exceed ten years in the state penitentiary. The other ground will not be discussed since the trial court sustained defendant’s motion in arrest of judgment as to a second count of the information. Defendant’s counsel raises thirteen specifications of error which we shall discuss as presented by the parties in their arguments and briefs. The record shows that on August 25, 1962, while defendant and Jesse James Waite, a former school mate, were drinking together in Rosie’s Roundup located on Fifth Street in Salina, Kansas, they ran out of funds and decided to write a check to get more money so they could continue to drink. They obtained a check blank and Waite wrote a check in the amount of $19.60 payable to defendant, signing it “Don J. Wilson,” and adding the word “labor” at the bottom of the check. Waite did not know whether there was a Don J. Wilson in Salina or whether there actually was a person by that name. Their first attempt to cash the check was unsuccessful because the check did not have an account number on it. Defendant added an account number to the check and they went to a Safeway Store where defendant cashed the check and purchased a few groceries while Waite waited in the car. He then returned to the car and gave Waite $6.00 from the proceeds of the check. Defendant was subsequently arrested and brought before the judge of the city court of Salina under a complaint charging forgery in the second degree in violation of G. S. 1949, 21-608, where he was arraigned and a preliminary hearing was had. We should here pause to point out that defendant’s counsel urges a reversal of this case because the judge of the city court failed to appoint counsel to represent him in that court since he was an indigent defendant. That judge was called as a witness in the hearing of the motion for new trial in the district court when defendant raised this question for the first time. The judge’s testimony was that while no verbatim record had been made of the preliminary hearing, defendant was advised of the offenses charged against him and they were read to him. In addition, defendant was advised he had a right to obtain counsel but that the city court judge had no authority to appoint counsel for him. Defendant made no request for appointment of counsel at the preliminary hearing. In connection with the above, attention is called to G. S. 1961 Supp., 62-1304 which applies to a defendant “. . . about to be arraigned upon an indictment or information for any offense against the laws of the state. . . .” Defendant’s counsel concedes the above statute does not require appointment of counsel for a preliminary hearing but he cites Martin v. Edmondson, 176 Kan. 374, 270 P. 2d 791, where the rule is stated thus: “While ... at a preliminary hearing a defendant may be assisted by counsel in such examination, it does not require the examining magistrate to appoint counsel for such defendant upon his demand therefor, and refusal to appoint counsel in such cases is not error.” (Syl. f 1.) (Our emphasis.) See, also, State v. Crowe, 190 Kan. 658, 378 P. 2d 89, where it was further held: “A preliminary hearing in a felony case is not a trial in the sense that word ordinarily is used. Absent a statute requiring appointment of counsel, without request therefor, a defendant’s constitutional rights are not invaded by waiving his preliminary examination without counsel.” (Syl. ¶ 1.) Thus we cannot agree with present counsel for defendant that defendant did not have a valid preliminary examination. At the conclusion of the preliminary hearing, the city court judge bound defendant over for trial in the district court of Saline county after finding that a crime had been committed and there was probable cause to believe defendant had committed it under G. S. 1949, 21-608 “as amended.” Defendant’s counsel argues that use of the last words “as amended” indicated confusion in the mind of the city court judge and, therefore, he could not possibly have apprised defendant of the exact crime with which he was charged. We think this proposition is without merit because it is admitted the statute in question has not been amended and the use of the words “as amended” would merely be surplusage. It is claimed defendant was prejudiced in his preliminary hearing because the state’s evidence, as testified to by a handwriting expert, was that the same person who wrote the check (Waite) also wrote the endorsement on the back thereof. We do not believe this prejudiced defendant for the reason that he later appeared, was arraigned, and entered his plea of “not guilty” in the district court. Waite, the other party to the forgery by his testimony made clear the circumstances and facts surrounding the commission of the alleged offense, and we axe unable to understand defendant’s position that there was a variance between the charge at the preliminary hearing and the one in the district court. In its argument here defendant’s counsel then returns to the preliminary examination stage of the proceedings and argues that defendant was not properly advised of the charge against him but, as heretofore stated, the record shows the charge was read to him and explained to be a felony. We think the proposition is well stated in defendant’s brief that defendant by a preliminary examination should be given a fair opportunity to know the general character and outlines of the offense charged against him but this defendant, without any authority therefor, would further require that every possible inference and all imaginative and speculative questions which might arise should be considered. Such is just not required by the law on a preliminary examination. A claim of variance between the offense charged and the proof, as complained of by defendant, is, therefore, totally without merit or support in this record. The only purpose for the preliminary examination is to determine whether a crime has been committed and that there is probable cause to believe defendant committed the crime, which in nowise compares with the rigidity of the requirement in the trial of the case where defendant is considered innocent until proved guilty beyond a reasonable doubt. While it is true the state did not produce a Don J. Wilson, or prove there was such a person in existence, under this record it cannot be said that Waite and defendant, or the state, knew this to be a fact. Defendant further complains that he had desired to testify in the trial of his case but his counsel refused to allow him to do so. During the hearing on the motion for new trial, defendant’s present counsel told the trial court this refusal had taken place and the trial court, as reflected in the record, explained that after conviction every defendant, and even his attorney, is of the opinion it was a mistake for him not to take the witness stand. Apparently no objection was made to the competency of the attorney handling the trial of the lawsuit, but counsel in this appeal seems to think defendant should have been allowed to testify. Counsel in the court below was employed by defendant’s family and he may have agreed with the trial court that if the defendant took the stand, any previous record defendant might have had would have been divulged and defendant would thereby have been prejudiced more than if he avoided testifying even though the trial court gave the usual instruction admonishing the jury that such information was not to be considered during its deliberations. Defendant objects to a juror asking the bailiff the difference in the degrees of forgery while they were out of the presence of the trial court. The record does not show the juror who testified on the motion for new trial ever asked such a question, nor is an answer by the bailiff indicated, but the jury was later brought into the courtroom by the judge and the question was answered by the judge in the presence of counsel and defendant. Defendant contends he was compelled to attend trial in his jail clothes and was thus deprived of a fair trial. The record does not disclose any such fact or anything that approaches it. We cannot agree with other contentions made by defendant in regard to facts shown by the record and it would only extend this opinion unnecessarily to discuss each and every minute detail conceived herein by capable and energetic counsel. Present counsel for defendant frankly admits he did not represent defendant during the trial in the court below, that Jack N. Stewart, a regularly practicing and qualified attorney of the Saline County Bar first represented defendant but he was discharged by defendant, and defendant thereafter informed the court he had employed Harold Crowfher, another member of the Saline County Bar, as his counsel. From the statement of present counsel for defendant it appears Mr. Crowther was employed by members of defendant’s family, and subsequent thereto present counsel was retained for the purpose of presenting the motion for new trial, all of which makes it questionable whether defendant is an indigent person so as to be qualified for court-appointed counsel under the law although we are aware of his affidavit declaring that he is indigent. It cannot be denied that G. S. 1961 Supp., 62-1304 requires appointment of counsel for an indigent defendant during a trial where he may be found guilty of a felony upon indictment or information (and see Gideon v. Wainwright, 372 U. S. 335, 83 S. Ct. 792, 9 L. ed. 2d 799, 93 A. L. R. 2d 733; 37 St. John’s Law Review, No. 2, p. 358, [May, 1963]; 24 University of Pittsburgh Law Review, No. 4, p. 851, [June, 1963]; 30 Journal of Bar Association of the District of Columbia, No. 12, p. 622, [December, 1963]) but we adhere to our opinion in State v. Crowe, supra, where it is said a prehminary hearing in a felony case is not a trial in the sense that word is ordinarily used. Our conclusion from this record is that this defendant was given ample opportunity to be represented by counsel at every stage of the proceedings where representation was required. The trial court’s judgment of conviction based on the jury’s verdict finding defendant guilty of forgery in the second degree, and the sentence thereafter imposed, are affirmed. Fontron, J., not participating.	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The opinion of the court was delivered by Fontron, J.: This is an action brought by the plaintiff to recover for damages sustained as a result of an alleged assault and battery. So far as material to the questions raised on this appeal, the amended petition reads as follows: “3. That at all times mentioned hereinafter, the defendant Bill Davis was a member, agent and employee of the Parsons Aerie No. 411, Parsons, Kansas, Subordinate Lodge of the Fraternal Order of the Eagles, in general charge of the club rooms of said organization, and on this specific date, engaged as a bar tender dispensing liquor and other beverages over the bar located on the premises; and the defendant Earl West was a member, agent and employee of said organization specifically engaged in acting as the ‘stick man’ at the dice table operated by said organization, selling chips, placing bets, and in general operating said dice game; and that both said defendants, at the date and times mentioned, were acting within the scope of their membership and employment; that the defendant Cecil Walker was employed by said organization, assisting the said Bill Davis in tending the bar and maintaining the premises and in keeping order on said premises. “4. That on June 3, 1962, the Parson Aeire [sic] No. 411, Parsons, Kansas, Subordinate Lodge of the Fraternal Order of the Eagles, by and through their Trustees above named, operated a club room or rooms at 1830K Broadway Street, Parsons, Kansas, open to members and to the public for the purpose of dispensing beverages, maintaining dice and card games and slot machines, all of which members and guests are invited to play. That on said date, the plaintiff, in the company of one Dean Ross, went to said premises at about the hour of 4:30 P. M. as a guest, not being a member. That he had been drinking alcoholic beverages, but was not intoxicated. That he and his companion, Ross, bought a bottle of whiskey at the bar of said club and were then invited by the defendant Earl West to shoot dice at the crap table operated by the club in charge of said defendant West. That some 15 minutes after he had entered the premises, at the invitation of the said Earl West, plaintiff along with his companion, Ross, did become involved in the crap game and remained in the game for approximately 30 minutes when an argument arose over the defendant West shortchanging the plaintiff and his companion. That the crap table was located in a room some 20 feet from the room containing the bar and easily accessible thereto. That at approximately 5:00 or 5:15 P. M., the defendant Earl West was engaged in a quarrel with Dean Ross, the companion of the plaintiff, but at the intercession of the plaintiff, this quarrel was terminated. That the defendants Bill Davis and Cecil Walker were aware of said argument, but made no attempt to stop it. That later, about 5:30 P. M. on said day, the plaintiff became involved in an argument with the said Earl West and was so engaged when his wife entered the premises and immediately requested the defendant Bill Davis to keep the peace on the premises or call law officers to do the same, or allow her to call officers of the law to do the same, at which time said Bill Davis advised her that he would not call officers of the law, or allow her to call the same, but would stop the argument. That the wife of said plaintiff then went to her husband, took him by the arm, terminating the argument with the defendant West and was walking with him around the crap table to the door leading toward the room where the bar was located, and toward the exit from the club when the de fendants Bill Davis and Cecil Walker came into the room and the said Cecil Walker, without provocation, hit the plaintiff on the jaw, knocking him against the crap table and seriously injuring him as hereinafter set out. 5. That the defendant Cecil Walker did unlawfully strike and assault the plaintiff immediately causing his injury, and that the defendants Bill Davis, Earl West, Parsons Aerie No. 411, Parsons, Kansas, Subordinate Lodge of the Fraternal Order of the Eagles, and the trustees thereof, did knowingly and willfully keep, maintain and operate the premises wherein alcoholic beverages were sold and games of chance were operated; having common knowledge with all mankind of the probability of altercations arising under such circumstances; and all of said defendants, by and through the knowledge of the agents and employees, Cecil Walker, Bill Davis and Earl West, of the arguments which preceded the actual injury, and in spite of the request of the plaintiff’s wife, showed a complete reckless and wanton disregard for the person and safety of the plaintiff, and allowed or concurred in the action of the said Cecil Walker in striking the plaintiff, all of which acts of the defendants were the proximate cause, or concurred in the proximate cause, of plaintiff’s injury and his damages arising therefrom.” For purposes of this opinion, the amended petition will be referred to as the petition, the three individual defendants as Walker, Davis and West, respectively, and Parsons Aerie No. 411 Fraternal Order of the Eagles, located at Parsons, Kansas, and the trustees thereof, as Eagles. The defendants filed individual demurrers to the petition, all of which, except Walker’s, were sustained by the court. The plaintiff has perfected this appeal from the orders sustaining the demurrers of Davis, West and Eagles. No appeal has been taken by Walker from the overruling of his separate demurrer. So far as the record shows, the trial court filed no memorandum setting forth its reasons for sustaining the demurrers, nor are the grounds for its judgment contained in the journal entry. Thus, we are not advised as to the basis on which the trial court sustained the demurrers. However, Eagles, in its brief, maintains that the lower court’s judgment should be sustained for the following reasons; (1) Misjoinder of causes of action; and (2) failure to state facts sufficient to constitute a cause of action against it in that (a) it alleges facts showing plaintiff to be in pari delicto, (b) it fails to charge Eagles with proximate cause, and (c) it does not allege a cause of action on a single definite theory. The defendants, Davis and West, have adopted Eagles’ brief except as to misjoinder and have also filed a short brief of their own covering proximate cause and. in pari delicto. We will first discuss Eagles’ contentions in reverse order. Although complaint is made that the plaintiff’s petition is not drawn on a single definite theory, but on a confusion of theories, our rule is to the effect that a pleading which sets forth any cause of action is sufficient to withstand a demurrer directed against it. (Liberty Glass Co., v. Bath, 187 Kan. 54, 353 P. 2d 786; Shirk v. Shirk, 186 Kan. 32, 35, 348 P. 2d 840.) The most casual glance at the petition will reveal a cause of action stated against Walker- for assault and battery. Furthermore, when the petition is considered in its entirety, we believe it shows that plaintiff has framed his case against Eagles on the theory of respondeat superior. We recognize the general rule, followed in Kansas as well as in other jurisdictions, that a master is not liable for a tortious act committed by his servant, including an assault and battery upon a third person, unless the act be done by authority of the master, either express or implied, or unless the act be done by the servant in the course or within the scope of his employment. (Hudson v. M. K. & T. Rly. Co., 16 Kan. [2d ed.] 470; Hamilton v. Neff, 189 Kan. 637, 371 P. 2d 157.) Notwithstanding this rule, we believe that the facts set out in plaintiff’s petition bring the case within an exception thereto, which, in brief, may be stated thus: That where an employee’s duties involve the preservation of peace and order on the master’s premises, or the protection of the master’s property from loss or vandalism, an inference arises that the servant is expected to use reasonable force in the performance of his duties and, consequently, the use of force falls within the scope of the servant’s employment. The statement of the rule embodying the exception is well and more fully expressed in 6 Am. Jur. 2d, Assault and Rattery, § 140, in the following words: “An employer’s vicarious responsibility for an assault committed by his employee may arise on the ground that the employment is of such a nature as to contemplate the use of force, and that, where an employee’s duties involve the preservation of peace and order on the premises of the employer, or the protection of the employee’s property from theft or vandalism, an inference arises that force, to a reasonable extent, may or is expected to be used in the fulfilment of the duties of the employment, and consequently, the use of such force is within the scope of employment. Where the nature of the employment or the duty imposed on an employee is such that the employer must contemplate the use of force by the employee as a natural or legitimate sequence, the employer will be held liable for the wilful or malicious act of his employee even though he had no knowledge that the act was to be done and although the act was in disobedience of express order or instructions given by him. Generally, where the employment contemplates some use of force, niceties of distinction are not indulged in to determine whether the use of excessive force was motivated by personal reasons, the view generally taken being that the amount of force to be used is discretionary with the employee, and even though there has been an abuse of such discretion the employer is nevertheless vicariously liable under the doctrine of respondeat superior. This is particularly true where assaults or batteries are committed by bartenders, cashiers, and managers of restaurants, managers and clerks of hotels and inns, and other similar employees who, as part of their duties, are expected to maintain order about the premises, and by store detectives.” (pp. 119, 120.) The foregoing rule was recognized by this court in Lehnen v. Hines & Co., 88 Kan. 58, 127 P. 612, where an action was brought by a hotel guest for damages suffered from an assault upon her by the room cleric, among whose duties was the preservation of order. In this case, it was held: “A hotel keeper is responsible to a guest for the acts of his servants in charge of a hotel whether the patricular acts were expressly authorized or not, providing the servant was acting in behalf of the proprietor at the time and within the general scope of his employment.” (Syl. ¶ 3.) In the course of its opinion, the court said: “. . . They placed him in authority as to the assignment and occupancy of the rooms and as to maintenance of order by the guests in the rooms, and they can not escape liability where in exercising his authority he may have deviated from instructions and because of a loss of temper or lack of sense and discretion he inflicted an unjustifiable injury upon a guest.” (p. 67.) A comprehensive annotation on the subject is found in 34 A. L. R. 2nd, 412 et seq., where cases from numerous jurisdictions are collected in which recovery has been allowed against the operators of places of public accommodation, such as hotels, restaurants, bars and saloons, for injuries which their employees had inflicted on patrons of such establishments. From the allegations of the instant petition, the drinking and gambling club rooms open to the public or to guests which were maintained by the Eagles would clearly appear to be comparable to the businesses noted above. Although the petition now before us alleges that the assault was made by Walker after the plaintiff’s quarrel with West was concluded, it may reasonably be inferred from the circumstances that it was perpetrated in the course of Walker’s employment to maintain order, even though unjustifiable force may have been used. The language of the petition is susceptible to the interpretation that Walker entered the room with Davis, who had primary charge of the club rooms, to assist Davis in putting an end to an argument between plaintiff and West which Davis had promised the plaintiff’s wife he would stop; and that the blow was struck, either to end an argument which Walker and Davis did not realize was terminated, or to prevent further trouble from a quarrelsome guest. The petition, under our rules, is to be liberally construed as against a demurrer, and plaintiff is entitled to the benefit of all reasonable inferences which logically can be drawn from the facts pleaded. (Merchant v. Foreman, 182 Kan. 550, 322 P. 2d 740.) Although it is not specifically so stated, it may also reasonably be deduced from the pleaded facts that Davis, after promising to end the disturbance, had enlisted Walker’s help for that purpose and that the two men, both of whom were charged with preserving decorum in the club rooms, together approached plaintiff with such a purpose in view. Accordingly, it is our judgment that a cause of action is alleged against Davis, as well as against the Eagles. A different situation obtains as to West, whose only culpable conduct appears to have been his operation of a gaming table. No fact is alleged which infers that he had any responsibility to quell disorders or that he assumed to act in the capacity of a bouncer. We are constrained to conclude that his demurrer was correctly sustained. What we have heretofore said disposes of the contention that no act on the part of Eagles or Davis is alleged to have been a proximate cause of plaintiff’s injuries. If Eagles, on the principle of respondeat superior, and Davis, as an associate of or a participant with Walker in the actual assault, are liable for the injuries proximately resulting from the assault, then proximate cause, in the eyes of the law, will be attributed to both of them, in joint measure with Walker. The claim advanced by Davis and Eagles that recovery by plaintiff is shown to be barred under the doctrine of in pari delicto is without merit. Eefore a wrongdoer is deprived of the law’s protection, his illegal act must have a causal connection with his injury and if at the time of injury he was engaged in a breach of the law which did not proximately contribute to his damage, such circumstance will not preclude his recovery. (52 Am. Jur., Torts, § 92, pp. 436, 437.) In Norris v. York, 105 Kan. 448, 185 Pac. 43, this court has held: “The rule, that where both parties are in equal wrong the situation of the defendant is the stronger, does not apply where the original wrongdoing is consummated and unrelated to the later and independent wrongdoing of the defendant of which the plaintiff complains.” (Syl. ¶ 2.) Certain cases are cited by defendants in support of the doctrine which involve the element of consent, as in mutual combat. Such cases are not in point. Despite the plaintiff’s questionable taste in choosing his recreational activities for the Sabbath, there is nothing in the circumstances depicted in the petition to indicate any assent on plaintiff’s part to a disabling blow to the jaw. Counsel for Eagles has expended considerable effort in arguing misjoinder of causes of action. Notwithstanding the ardent advocacy on the point, we discern nothing which is fatal to the petition on such score and shall not prolong this opinion by extensive comment on the authorities cited. The cases cited are either distinguishable on their facts or else their import has been either misconstrued or misunderstood by counsel. Our rule concerning joinder of causes of action is set out by statute, G. S. 1949, 60-601, which provides: “The plaintiff may unite several causes of action in the same petition, whether they be such as have been heretofore denominated legal or equitable, or both. But the causes of action so united must affect all tire parties to the action, except in actions to enforce mortgages or other liens.” This court, in Nichols v. Nold, 174 Kan. 613, 258 P. 2d 317, has held that an action sounding in tort may be joined with one in implied warranty. In the recent case of Baker, Administrator v. Brial, 185 Kan. 322, 341 P. 2d 987, in an action wherein separate causes of action were alleged against different defendants, we have said: “Of course, the causes were misjoined because they did not affect all of the parties to the action and not because one of the causes of action sounded in contract and the other in tort. . . .” (p.324.) As we have already held, the instant petition alleges a cause of action for assault and battery against both Walker and Davis, as joint participants, and against Eagles on the basis of respondeat superior. It is apparent that all three defendants are affected by the cause of action which is alleged. Under these circumstances, the defense of misjoinder has no standing. The judgment of the court below is sustained as to the defendant Earl West. The judgment is reversed as to defendants Bill Davis and Parsons Aerie No. 411, Subordinate Lodge of the Fraternal Order of the Eagles, with instructions that their demurrers be overruled. It is so ordered.	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The opinion of the court was delivered by Wertz, J.: Oscar Floyd Wharton, hereinafter referred to as defendant, was charged by an information in the district court of Sedgwick county with three counts of first degree robbery and one count of possession of a pistol following conviction of a felony. Before defendant was arraigned on these charges he escaped from custody and a second information was filed charging him with escaping custody before conviction in violation of G. S. 1949, 21-736. A warrant was issued on the latter information. The sheriff of Sedgwick county arrested defendant and took him into custody at Little Rock, Arkansas, and returned him to Sedgwick county. The sheriff returned the warrant on October 6,1963. On October 7 defendant appeared with his duly appointed counsel, waived arraignment, moved for a preliminary hearing, entered a plea of not guilty, requested a jury trial and moved to quash the information. On October 10 the mentioned cases were consolidated for trial and defendant moved to dismiss the cases for the reasons that his arrest in Arkansas and his subsequent forcible return to the state of Kansas without extradition or waiver thereof were illegal, that the court acquired no jurisdiction over the person of defendant, and that any further proceedings in the case would be ineffectual and void. This motion was overruled. There is nothing in the record, other than the colloquy between defendant’s counsel and the court, to show what took place in Arkansas. On October 11 the defendant entered a plea of guilty to all counts set forth in the mentioned informations and was sentenced to the state penitentiary. While in confinement, and on the 21st of November, defendant appealed pro se to this court. Subsequently, counsel was appointed by the court to represent the defendant in his appeal. It is defendant’s sole contention on appeal that by virtue of the illegal manner in which he was arrested in the state of Arkansas and brought to the jurisdiction of the Sedgwick county court the trial court lacked jurisdiction over the person of the defendant to entertain his pleas of guilty and render a binding sentence. This court is committed to the well-established rule that the jurisdiction of a district court of this state to try a person on a charge of having committed a public offense does not depend upon how he came to be in this state; and the same rule, of course, applies to the jurisdiction of the district court in such cases to entertain a plea of guilty to the offense charged in the information filed therein. (Converse v. Hand, 185 Kan. 112, 113, 340 P. 2d 874; Carrier v. Hand, 183 Kan. 350, 351, 327 P. 2d 895; Stebens v. Hand, 182 Kan. 304, 306, 320 P. 2d 790; Foster v. Hudspeth, 170 Kan. 338, 340, 224 P. 2d 987, cert. dismissed 340 U. S. 940, 95 L. Ed. 678, 71 S. Ct. 503.) (See, also, Anno. 165 A. L. R. 947; 22 C. J. S., Criminal Law, § 146, p. 391.) In Stebens v. Hand, supra, this court said: “There is nothing in the Constitution or laws of the United States which exempts an offender, brought before the courts of a State for an offense against its laws, from trial and punishment, even though brought from another State into the jurisdiction by unlawful violence, or by abuse of legal process. (Ker v. Illinois, [1886] 119 U. S. 436, 7 S. Ct. 225, 30 L. Ed. 421; and Mahon v. Justice, 127 U. S. 700, 8 S. Ct. 1204, 32 L. Ed. 283.)” (p. 306.) The general rule is stated in 14 Am. Jur., Criminal Law, § 217, p. 919: “. . . jurisdiction of the person is not affected by the way it is acquired. It is of no consequence that fraud, deceit, physical force, or any illegal means whatsoever has been employed to bring the person of the defendant within the reach of the court. If the court lawfully acquires jurisdiction of his person after he is within reach of its process, the means used to bring him there will not be inquired into. This rule is frequently applied where the accused has been arrested by officers in another state and brought into the state where he is charged with crime without the formality of extradition proceedings.” In the case of Brandt v. Hudspeth, 162 Kan. 601, 178 P. 2d 224, the defendant was arrested in Missouri by Kansas officials and by force and violence returned to Kansas without compliance with the laws pertaining to extradition of persons charged with crime. We said that even so, it did not follow that the Kansas court in which the criminal proceeding was pending lacked jurisdiction to receive defendant’s plea of guilty and impose sentence thereon. We further stated that contrary to defendant’s claim the question was not stare decisis in this jurisdiction notwithstanding our decision in State v. Simmons, 39 Kan. 262, 18 Pac. 177. See the opinion in State v. Wellman, 102 Kan. 503, 508, 170 Pac. 1052, where it was said, “The jurisdiction of a district court to try a person on a charge of having committed a public offense does not depend upon how he came to be in this state.” (See, also, Anno. 165 A. L. R. 947.) State v. Simmons, supra, relied on by defendant, was a proceedings in contempt and foreign to the facts in the instant case. It has no application, and anything said therein which conflicts with the views herein expressed is disapproved. In the instant case defendant waived arraignment, moved for a preliminary hearing, entered a plea of not guilty, requested a jury trial and subsequently entered a plea of guilty to the offenses charged. In doing so he submitted his person to the jurisdiction of the court — if the court ever lacked such jurisdiction. It is the general rule that where a court has jurisdiction of the subject matter, jurisdiction of the person of accused may be conferred by consent or waiver. (22 C. J. S., Criminal Law, § 147, p. 394, and § 161, p. 418.) Generally, where accused pleads to the merits of the action, he waives all objections with respect to the court’s jurisdiction of his person. (22 C. J. S., Criminal Law, § 162, p. 421; 4 Wharton’s Criminal Law and Procedure, § 1890, p. 759.) The judgment of the trial court is affirmed.	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The opinion of the court was delivered by Hatcher, C.: This appeal stems from an action for damages resulting from injuries sustained in an automobile collision at a street intersection. The facts necessary to present the limited issue to be considered may be abbreviated. The plaintiff, Danny L. Gardner, a 14 year old boy, was riding in an automobile being driven by his 16 year old brother, John, on the evening of May 30, 1961. They proceeded north on Hillside Street to where it intersects George Washington Boulevard, Wichita, Kansas. As they approached the intersection the signal light turned green for north-bound Hillside traffic and they proceeded into the intersection. At the same the defendant, who was proceeding south on Hillside Street, entered the intersection and made a left hand turn. A collision occurred between the automobiles at the southeast quadrant of the intersection. Separate actions wex-e brought by each of the two boys, Danny L. Gardner and John A. Gardner, III, by and through their mother, Evanne Gardner, as their natural guardian and next friend, to recover damages for their personal injuries. A separate action was also brought by the mother, Evanne Gardner, to recover damages by reason of the loss of services of Danny L. Gardner and expense for his medical care and treatment. The claim for loss of services was later withdrawn. After the issues were framed by the pleadings in each individual case Ervin E. Pereboom, the defendant in each case, filed a motion to consolidate the three separate cases. Arguments were presented on the motion following which the lower court entered an order consolidating the cases for trial. The cases proceeded to trial which for all practical purposes was conducted as one case in three counts. The jury returned a verdict “in favor of the defendant, Ervin E. Pereboom, and against the plaintiffs,” which was approved by the court. Motions for a new trial on behalf of each plaintiff were overruled and appeals were taken. The present controversy involves the appeal of Danny L. Gardner. The appellant first contends that the trial court erred in consolidating the three separate cases for trial. We are forced to conclude that the consolidation was erroneously ordered. At the time the cases were tried the statute pertaining to consolidation of actions read: “Whenever two or more actions are pending in the same court which might have been joined, the defendant may, on motion and notice to the adverse party, require him to show cause why the same shall not be consolidated, and if no cause be shown the said several actions shall be consolidated. . . .” (Emphasis supplied. G. S. 1949, 60-765.) It will be noted that actions which are to be consolidated are those which “might have been joined.” The reason for this provision is apparent when the effect of a consolidation under the provisions of the statute are considered. In Western Shale Products Co. v. City of Fort Scott, 175 Kan. 643, 266 P. 2d 327, we held: “The effect of a consolidation of two or more actions under G. S. 1949, 60-765 is to unite and merge them into a single action for the purpose of all future proceedings the same as though the different causes of action had been joined in a single action.” (Syl. 7.) We look to G. S. 1949, 60-410 to determine who may be joined as plaintiffs: “All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this article.” The joinder is also prohibited by G. S. 1949, 60-601 which provides: “The plaintiff may unite several causes of action in the same petition, whether they be such as have been heretofore denominated legal or equitable, or both. But the causes of such action so united must affect all the parties to the action, except in actions to enforce mortgages or other liens.” Individuals suing for damages resulting from injuries incurred in the same automobile collision do not have an interest in the same subject matter. Each is suing for his own personal injuries. Neither are they interested in the same relief. Each in interested in relief for his own personal injuries. The question was before us in the recent case of Fields v. Anderson Cattle Co., 193 Kan. 558, 396 P. 2d 276, where it was said at page 562: “Insofar as appellants claimed damages for injuries to their respective health and mental well being the claims are separate, distinct and necessarily personal to each other. Each appellant is concerned only with recovering damages for his own personal injuries without regard to those sustained by the other. The claims on which the causes of action so united are based do not affect all the parties to the action and their joinder is prohibited by G. S. 1949, 60-601. “The question was before this court in Watkins v. City of El Dorado, 183 Kan. 363, 327 P. 2d 877, and it is stated on page 367 of the opinion: “ ‘Thus we come to the question whether appellees may unite in one joint cause of action claims for damages for injuries to their respective health and well being. It may be added that with respect to such question we have no difficulty in concluding the involved claims are separate, distinct and necessarily personal to each appellee. In other words conceding appellees’ complaints, limited as heretofore indicated, against the appellant in the second cause of action are identical, the fact remains that each appellee is concerned only with recovering damages for his own personal injuries without regard to those sustained by the other. Indeed in this connection it should be pointed out that in their brief, and notwithstanding inconsistent arguments to the contrary, appellees expressly concede “the instant case is one for permanent damages to land, as distinguished from buildings and/or crops, etc., joined with an action for personal injuries.” Under such conditions and circumstances there can be no doubt that this court, in construing the force and effect to be given the provisions of G. S. 1949, 60-601, and earlier provisions of our code of civil procedure of like import, has long held that causes of action are im properly joined and subject to a demurrer based on that premise.’ ” (See, also, Dunn v. Mortgage Co., 113 Kan. 169, 213 Pac. 655; Oil & Gas Co. v. Holland, 114 Kan. 863, 220 Pac. 1044; Crisler v. C. K. Packing Co., 181 Kan. 118, 309 P. 2d 703.) The appellee contends that the separate actions were consolidated for trial only and calls our attention to Lardner v. Cook, 152 Kan. 266, 103 P. 2d 849, where it is stated: “The actions being filed in the district courts of Linn and Bourbon counties were not pending in the same court, but in separate and distinct courts. They could not have been joined as one action, as they did not all involve the same parties nor the same res. Obviously then the stipulation did not create one lawsuit out of four. The actions remained separate and distinct so far as dockets, judgments and appeals were concerned. . . .” (p. 270.) There was no attempt in the Lardner case to consolidate the actions as one; rather, the parties agreed with the consent of the court that the decision in one action should determine the decision in all of the other actions. In the case now before us the cases were tried as one case with three counts. There was but one verdict and one judgment. Appellee next contends that the appellant is not entitled to raise the question of consolidation in this appeal because the alleged error was not raised on his motion for a new trial. The appellant suggests that the error was included in his motion for a new trial under the part which read: “because of erroneous rulings and instructions by the court.” We need not pause here to consider the merits of this contention. It will suffice to say that an order made on a motion directed at the pleadings is not a trial error and need not be included in the motion for a new trial as a prerequisite to review by this court. The distinction between orders on motions and trial errors necessitating motions for a new trial before review is clearly set out in Federal Land Bank v. Richardson, 146 Kan. 803, 73 P. 2d 1005 and McDermott v. Halleck, 65 Kan. 403, 69 Pac. 335. A new trial authorized by motion is defined by G. S. 1949, 60-3001 as follows: “A new trial is a reexamination in the same court of an issue of fact after a verdict by a jury, report of a referee or a decision by the court. . . .” A motion addressed to the pleadings such as a motion for consolidation of actions, or the dismissal of an action because of a misjoinder, does not result in a trial error, but if erroneous, results in an error before the trial has begun. The question was fully discussed in Wagner v. Railway Co., 73 Kan. 283, 85 Pac. 299 as follows: “From this language it is plain that a motion for a new trial has no function to perform unless an issue of fact has been fully determined and the determination has been embodied in one of three specified forms. Not only must there have been a trial, a judicial examination of the issues of fact, but those issues must have been definitely settled by the verdict of a jury or its equivalent, final and conclusive upon the facts unless vacated. Until that stage of the proceedings in an action has been reached the condition precedent to the filing of a motion for a new trial does not arise; the single circumstance capable of creating a field for its operation has not occurred; the only subject-matter vulnerable to its attack does not exist. “There is no such thing as a new trial of issues of law. Questions relating to the determination of those issues may be investigated by this court without previous reexamination by the trial court.” (p. 284.) “. . . If it be claimed that error of law has been committed so that the proceeding has fallen short of a verdict, report or decision upon the facts, the aggrieved party may ask this court to secure to him, not a new trial, but a trial in the complete sense of the term; not a reexamination of the issue of fact, but an initial examination of the issues of fact, which shall be continued until it reach the point of actual consummation for such proceedings. There must always be a ‘former verdict, report or decision determinative of issues of fact to be vacated before there can be a new trial, or any necessity for a motion for a new trial. “When judgment is rendered on the pleadings there can be no trial of the issues of fact, no verdict, and no motion for a new trial is required. (Land Co. v. Muret, 57 Kan. 192, 45 Pac. 589.) . . .” (p.285.) The appellee further suggests that there is no showing or prejudice because of the consolidation and that the errors should be disregarded under the provisions of G. S. 1949, 60-3317 which directs the appellate court to disregard all mere technical errors and irregularities which do not affirmatively appear to have prejudicially affected the substantial rights of the complaining party. We cannot say as a matter of law that an order of the district court made in direct violation of a statutory provision is a mere technical error. Appellee suggests the question of consolidation is moot because a different rule applies under the provisions of the new code (K. S. A. 60-242). The appellant had a right to try his case under the law as it existed at the time the case was tried. It might also be suggested that the question of the necessity of a motion for a new trial is moot because a motion for a new trial is not a prerequisite to the review of a trial error under the new code. This opinion will afford no precedent for the future, the rights of the parties must be determined as of the time the case was tried. The judgment is reversed with instructions to grant the plaintiff, Danny L. Gardner, a separate trial of the issues framed by the plead - ings in his case. approved by the court.	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The opinion of the court was delivered by Hatcher, C.: This is an appeal from a judgment which found the existence of an oral agreement to provide for a share in an estate, and decreeing specific performance of the agreement against the deceased promisor’s estate. This appeal is another chapter of the protracted litigation following the death of Gertrude McCourt Shirk of McPherson, Kansas. (See Shirk v. Shirk, 186 Kan. 32, 348 P. 2d 840; In re Estate of Shirk, 186 Kan. 311, 350 P. 2d 1; In re Estate of Shirk, 188 Kan. 513, 363 P. 2d 461; Shirk v. Shirk, 190 Kan. 14, 372 P. 2d 556.) The general facts which are not in dispute will first be stated. Gertrude McCourt Shirk had been a resident of McPherson, Kansas for many years. She was originally married to A. L. Rankin. The marriage ended in divorce. A daughter born to this marriage died in infancy. Gertrude later married William Snyder Shirk. Two children were bom to this marriage. William S. Shirk was born December 27, 1911, and Betty Shirk was born July 3, 1913. They are referred to as Bill and Betty in the record and will be best identified here by such reference. Bill and his present wife, Claire, have three children all of whom are minors. They are William, George and Mary Gertrude. Betty was married to Leland Quantius in 1934. Carmen was born to this marriage October 1, 1937. Betty never returned to McPherson except for short visits thereafter. Betty divorced Leland Quantius April 1, 1939. Gertrude adopted Carmen in 1940. The final order of adoption was entered January 11, 1941. On August 15, 1941, Betty married Walter E. O’Brien. In the fall of 1942, they commenced proceedings for the adoption of Carmen from Gertrude with her consent. A final decree for this adoption was entered June 14, 1943. Danny O’Brien, who is now a minor, was born to this marriage. Gertrude died on September 17, 1957, leaving a will dated December 10, 1956, which was admitted to probate October 17, 1957. Gertrude died having jointly owned securities of $13,000.00 with Bill and approximately $20,000.00 with each of her five grandchildren which the executor was directed to deliver to each of the surviving owners. There was subject to administration under the will personal property of the appraised value of $226,492.42 and real property of the appraised value of $225,000.00. This property was bequeathed to Bill in trust for the benefit of himself and the five grandchildren. The income was to be distributed one-half to Bill and one-half to the five grandchildren. When the youngest grandchild reached the age of 30 years the corpus of the estate was to be divided in the same proportion. Betty was to receive $100.00 per month from the income of the estate subject to conditions. When the will was read Betty seemed pleased and stated, “I done a whole lot better than I expected.” On September 23, 1957, Betty filed a petition for the allowance of the $100.00 per month, stating that she was in “necessitous circumstances.” On April 19, 1958, Betty brought an action against Bill to recover the sum of $200,000.00 alleging that he wrongfully influenced Gertrude to make the above mentioned will and fraudulently induced her to release her right to contest the will. This action was not successful. On July 14, 1958, five days before the expiration of the time for filing claims against the estate, Betty filed a petition for allowance of demand. The demand was for the value of one-third of the estate because of an alleged oral contract made with Gertrude during her lifetime. We will present only so much of the amended petition for allowance of demand as pertains to the alleged facts and circumstances under which the oral agreement was made: “During 1939 Gertrude McCourt Shirk was very disappointed in the conduct and marital failures of her two children, William S. Shirk and Betty Shirk, and was displeased in the manner in which Betty Shirk was rearing Carmen Quantius. Following her divorce, your petitioner had difficulty in supporting herself and Carmen Quantius. She was required to be away from her child from time to time while engaged in her work and Gertrude McCourt Shirk believed Carmen Quantius was receiving inadequate care. In the fall of 1939, Gertrude McCourt Shirk took Carmen Quantius from the home of your petitioner at Topeka, Kansas and brought her to the residence of Gertrude McCourt Shirk in the Town House, a hotel owned and operated by Gertrude McCourt Shirk at McPherson, Kansas. . . . “Gertrude McCourt Shirk then orally proposed to your petitioner that if Betty Shirk would give her consent to the adoption of Carmen Quantius by Gertrude McCourt Shirk, that Gertrude McCourt Shirk would take good care of and rear Carmen Quantius, make Carmen Quantius her heir along with William Shirk and Betty Shirk, and that the three would share equally in her estate. Gertrude McCourt Shirk was deeply concerned in the health and welfare of her only grandchild and was afraid that if this grandchild died she would probably have no descendants after the death of her two children. Gertrude McCourt Shirk further stated that if thereafter Betty Shirk should be happily married and have a good home for Carmen Quantius, and if she and her husband should then desire to adopt Carmen Quantius, Gertrude McCourt Shirk would then give her consent to such re-adoption. Your petitioner believed that such an arrangement would be for the best interests and welfare of Carmen Quantius and she then accepted said proposal and agreed to do as her mother requested. The provision in said agreement that your petitioner would not be denied her one-third share as a daughter in the Gertrude McCourt Shirk estate was incidental to the main purpose of such agreement which was to provide for and secure the welfare of Carmen Quantius. “Soon after making such agreement, and after Betty Shirk had lived for a while in the Town House with Carmen Quantius and her mother, Gertrude McCourt Shirk told Betty Shirk that she didn’t want her living in McPherson and that she wanted her to leave McPherson, Kansas and establish a home for herself elsewhere. Betty Shirk then asked Gertrude McCourt Shirk how such would affect her share in the estate of Gertrude McCourt Shirk and Gertrude McCourt Shirk then promised that if she would go immediately she would get her third share in her estate. Your petitioner then agreed to do as her mother requested.” The petition for allowance of demand was transferred to the district court for trial. The trial court rendered judgment in favor of the claimant, and the executor and the grandchildren, through their various representatives, have appealed. The appellants claim numerous errors on the part of the trial court. However, we will first consider appellants’ contention that: “The claimant completely failed to establish any contract with the decedent by the required standard of clear and convincing evidence.” Before considering the evidence by which appellee sought to establish her claim we will give attention to the law which is to guide us in our consideration and determination of the question. In considering the sufficiency of evidence to establish an oral contract with a person since deceased to devise, bequeath, convey or not disinherit, a much different rule is applied than is applicable to proof in the ordinary civil action. It is not sufficient that the claimant establish the contract by a preponderance of the evidence which usually satisfies the burden of proof, but the contract must be established by clear and convincing evidence. Also in reviewing the sufficiency of such evidence on appeal a much different rule is applied than is applicable to the review of evidence in the ordinary civil action. If the trial court finds that such an oral contract was made this court will not only review the record for the purpose of determining if there is any substantial evidence to support the finding but will consider the evidence for the purpose of determining whether it is clear and convincing. Those who desire to apply this exception will avoid confusion if they understand that the exception does not apply on review where the district court has made a negative finding, i. e., that there was no such oral agreement. In Potts v. McDonald, 146 Kan. 366, 369, 69 P. 2d 685, it was stated: . . It is quite common on review to set aside an affirmative finding because the record shows there was insufficient evidence to support it, which is widely different from setting aside a negative finding to the effect that the evidence did not prove or establish the allegations of the petition. Whenever there was any evidence in support of the allegations, the trial court in holding it was insufficient, may have so held because of the limited quantity of it, or because of its questionable weight and the credibility of it. . . (In re Estate of Winters, 192 Kan. 518, 389 P. 2d 818.) This court has frequently and consistently held that oral contracts of the sort under consideration here must be established by clear and satisfactory proof or by proof that is clear, satisfactory and convincing. (Bond v. Bond, 154 Kan. 358, 118 P. 2d 549; Trackwell v. Walker, 142 Kan. 367, 46 P. 2d 603.) Courts of equity will subject the evidence submitted as proof of such contracts to close scrutiny and the contract must be established by the clearest and most convincing proof, a mere preponderance of the evidence being insufficient. (In re Estate of Towne, 172 Kan. 245, 239 P. 2d 824.) In the recent case of In re Estate of Duncan, 186 Kan. 427, 350 P. 2d 1112, it was stated at page 432: “In considering the contention that equity should decree specific performance of the alleged oral contract in the instant case, we are guided by cautionary rules and equitable principles which have developed from innumerable cases of this character. It has been repeatedly held by this court that before one can recover under an alleged oral contract to will or devise property to another, such a contract must be clearly and definitely developed by direct evidence or corroborating testimony, or by circumstances from which the reasonable inference arises that an agreement was made. . . .” The Kansas decisions appear to have followed the general rule. It is stated in 81 C. J. S., Specific Performance, § 142, p. 722, as follows: “As a general rule, in order to entitle plaintiff to a decree for specific performance, the facts essential to a recovery must be established by that high degree of proof which has variously been characterized by the terms ‘clear,’ ‘clear and convincing,’ ‘clear and satisfactory,’ or other equivalent expressions. Although the right to relief must be established by a preponderance of the evidence, it has been held that proof by a mere preponderance of the evidence is insufficient, that the essential facts entitling plaintiff to relief must be shown by a clear or decided preponderance of the evidence, and that, if the proof is substantially evenly balanced relief will be denied. Specific performance will be denied in a doubtful case, or where the evidence is uncertain and conflicting, but this does not mean that specific performance must be denied simply because the evidence is conflicting. The right to specific performance must be established by substantial evidence, and all the relevant evidence should be considered in determining whether a contract should be specifically enforced.” Also, in 49 Am. Jur., Specific Performance, § 169, p. 191, it is stated as follows: “Where a proceeding is brought for specific performance, the rule seems to be established that more than a mere preponderance of testimony is required to establish the existence of the contract when its existence is denied. In order that specific performance of a contract may be decreed, the evidence of the making of the contract must be clear and convincing, or, as stated, in some cases, clear, cogent, and convincing, or strong and conclusive. . . .” The term “clear and convincing evidence” is too illusive to be the subject of an exact definition. Perhaps to a great extent the determination must be made from the facts and circumstances of each particular case. The cases which have stated the reasons for the rule should supply some guide for its application. Claims such as the one we are presently considering have been characterized as “inherently dangerous” (James v. Lane, 103 Kan. 540, 175 Pac. 387), because they offer a great temptation to set up fraudulent claims against the estates of deceased persons. (Woltz v. First Trust Co., 135 Kan. 253, 259, 9 P. 2d 665.) In Walter v. Warner, 298 F. 2d 481, it was stated on page 482: “It is basic in the law of Kansas that an oral contract providing that title to real estate shall pass from one party to another at the death of the former will be enforced by specific performance if the contract was not inequitable and was fully performed by the promisee, but in a case of that kind the evidence will be scrutinized carefully and relief will be granted with caution as such cases sometimes lend themselves to the assertion of fraudulent claims. The reason was further extended in Heine v. First Trust Co., 141 Kan. 370, 375, 41 P. 2d 767, as follows: “In the case of Purcell v. Miner, 4 Wall. (U. S.) 513, 18 L. Ed. 435, an oral contract of this sort was considered. The court said: “ ‘It cannot be made out by mere hearsay, or evidence of the declarations of a party to mere strangers to the transaction, in chance conversation, which the witness had no reason to recollect from interest in the subject matter, which may have been imperfectly heard or inaccurately remembered, perverted or altogether fabricated; testimony, therefore, impossible to be contradicted.’ (p. 518.)” The reason for and the application of the rule is stated in 69 A. L. R., page 167, as follows: “It has been remarked that contracts of the character in question have become so frequent in recent years as to cause alarm, and the courts have grown conservative as to the nature of the evidence required to establish them, and as to enforcing them when established. Also, that causes of this character are inherently easy to prove and hard to combat, — a characteristic that should not impair the.action when proved, but which should cause the court to proceed with caution. And the view has been expressed that, when such a contract is made the basis of an action, the evidence in support of it should be looked upon with great jealousy, and weighed in the most scrupulous manner. The character, conduct, and testimony of the witnesses should be such as to inspire confidence that they are telling the truth. Such a contract can be enforced only when it is clearly proved by direct and positive testimony and its terms are definite and certain.” What is meant hy the term “clear and convincing evidence” is well stated in an instruction approved in Aetna Insurance Company v. Paddock, 301 F. 2d 807, it was stated at page 811: “Regarding sufficiency of proof, the court defined ‘clear and convincing evidence’ in the charge as follows: “ ‘To set aside and reform or correct that instrument in which a mutual mistake is alleged, it must be shown by clear and convincing evidence, and by that term is meant the witnesses to a fact must be found to be credible and that the facts to which they have testified are distinctly remembered and the details thereof narrated exactly and in due order and that the testimony be clear, direct and weighty and convincing, so as to enable you to come to a clear conviction without hesitancy of the truth of the precise facts in issue.’ This is a fair and well supported definition.” We must next consider the testimony submitted by appellee for the purpose of determining whether it meets the required test of clear and convincing in establishing the alleged contract. Appellee submitted the testimony of five witnesses to establish her claimed contract. We accept the appellee’s summary of the testimony of three of her witnesses as follows: J. J. Heidebrecht testified in substance: “He said he was McPherson County Probate Judge from 1925 to 1955. He said he remembered Mrs. Shirk adopting Carmen Quantius. Mrs. Shirk told him privately that Betty’s home was wrecked by divorce and that as soon as Betty settled down at her own home she would give the baby back to her.” Claudia Mae Ballweg testified in substance: “She said she was acquainted with Mrs. Shirk and worked for her. Mrs. Shirk told her in 1940 that Carmen would share alike with Bill and Betty and each would get a third. Mrs. Shirk told her to make a will so each of her children would get the same amount. She said that was tire way she had hers fixed.” Harold F. Aurell testified in substance: “He said he was a master electrician and that he started working for Mrs. Shirk in 1917 and did practically all of her electrical work until the time she died. In 1940 Mrs. Shirk told him that Betty had gone to Texas, that she didn’t want her around the hotel, but that she hadn’t disinherited her. She said Betty would receive a third and Carmen a third and Bill a third of her estate. She emphatically did not want Betty around the hotel and said Betty would get a third share of her estate if she left McPherson.” A casual examination of the above testimony discloses that it falls far short of establishing any definite agreement between Betty and Gertrude, her mother. It is perhaps only submitted as corroborating what was thought to be positive testimony of the other two witnesses. Of the two other witnesses testifying, one purported to be a friend of the family and will hereinafter be identified as the Family Friend, and the other was a maid in the Town House Hotel which was owned by Gertrude and in which she lived. She will be identified herein as the Hotel Maid. The Family Friend’s testimony is summarized. She said that she was a very close friend of Mrs. Gertrude Shirk and Gertrude consulted with her on many problems. In 1939, shortly after Betty divorced Leland Quantius, Gertrude called her to her apartment at the Town House Hotel. Gertrude said that she had received a telephone call from the baby sitter at Topeka informing Gertrude that Betty was in Kansas City looking for a job and that Betty had left Carmen in Topeka without any money with which to buy milk. Gertrude and she talked the matter over in detail. The Family Friend advised Gertrude to get the baby herself and to take care of it. Gertrude called in Bill and told him to go to Topeka to get the baby. The Family Friend returned that same evening, possibly seven o’clock, and saw the baby and again talked with Gertrude. The Family Friend stopped in at least a dozen times in the month immediately after the baby was brought from Topeka and visited on each occasion with Gertrude. Betty herself came in from Kansas City within about a week after the baby was brought from Topeka. The Family Friend visited with Betty two or three times; she regarded Betty almost like her own daughter. After Betty had been there a few days Gertrude called the Family Friend down to the apartment and there was a conversation with Betty and the Hotel Maid present. Betty apparently was not going to take care of Carmen and Gertrude said that she, Gertrude, was going to have to adopt Carmen in order to see that she was taken care of. Betty was worried about what this would do to Betty but Gertrude told her not to worry because Carmen would be treated as a child and there would then be Bill and Carmen and Betty, the three of them, to have her estate, one-third to each. Gertrude also told Betty to leave town and that if she remarried and had a good home for Carmen, Betty could re-adopt her. Within less than a week after that Betty left but the Family Friend did not know where she was going. The Hotel Maid’s testimony is summarized. The Hotel Maid said that she worked for Gertrude about fifteen years. She remembered when Carmen was brought from Topeka but could not give the date. Carmen’s baby sitter had called Gertrude and told her that Betty had gone to Kansas City and left her without any money to buy milk for Carmen. Gertrude then sent Bill to Topeka to bring Carmen back to McPherson. Gertrude put Carmen and her baby sitter in a room just across the hall from Gertrude’s apartment, Room 71. About four or five days later Betty showed up and stayed in Room 65 for probably a week or a little longer. Gertrude had several times mentioned the idea of adopting Carmen. Then there was the conversation in her apartment when Betty was there. It was probably two or three days after Betty showed up. Gertrude did not think Betty could take care of Carmen and she figured that she would have to take care of Carmen herself. That is what she said and she thought that she had better just adopt Carmen and then Betty would not have anything to say about it. She said to Betty that she would make Carmen an heir along with Betty and Bill. She told Betty that she wanted Betty to leave McPherson. Betty asked if it would interfere with her share in the estate and Gertrude said that it would not make any difference. She told Betty that if Betty remarried and Betty and her husband both wanted to readopt Carmen and had a good home to take her to, she would let them. Betty stayed around about three or four days and then she left. Gertrude said that Betty had gone to Texas. It must be noted that the testimony of the two witnesses as to the facts and circumstances surrounding the making of the alleged contract was given positively and in detail. This included the time when and place where the contract was made. The testimony was in accord with the facts alleged in the amended petition for allowance of demand. It would hardly be contended that the above testimony was not most clear and convincing. The difficulty is that all of the testimony as to the facts and circumstances surrounding the making of the alleged agreement was, by documentary evidence, proven to be absolutely false and untrue. The appellants’ evidence disclosed that Gertrude Shirk was in the Orient at the time Carmen was taken from Topeka to McPherson. Carmen was not picked up at the suggestion of Gertrude. On May 4, 1939, Bill received a telegram from Betty who was then in Texas which read: “Get Carmen Topeka take charge of her until I can.” Bill picked up Carmen at Topeka and cared for her in McPherson until Gertrude returned from the Orient the latter part of June. Betty did not go to McPherson during the year 1939, except for a short visit at Christmas time. There is no evidence which indicates that Betty ever again returned to McPherson except for short visits or that she ever deshed to return there to live. At the close of appellants’ evidence the claimant sought and obtained permission to reopen her case for the purpose of explaining the discrepancy in testimony of the two witnesses. The explanations were anything but satisfactory. The Family Friend testified: “Q. Yes. You testified with complete positiveness that you were the one that told Mrs. Shirk that she should send Bill up to Topeka to get Carmen. “A. She asked me what I woud do, and I just suggested what I would have done, but I was — that was when she was gone, so she was not there.” She testified further: “Q. All right. Now, if you didn’t know then why did you come in here into court and testify to those things, Mrs. . . .? Just explain that to the Judge, will you please? If you didn’t know then why did you tell him. that under oath here last Monday? Can you? Can you explain why? “A. Gertrude Shirk talked to me about her family all the time. “Q. That isn’t my question. “A. So I don’t know. “Q. All right. Did it seem positive to you that with three days to a week afterwards Betty came, whether she came from Kansas City or where? Is that what seemed positive to you on Monday? “A. Well, yes, it did. “I was confused when I testified earlier and I am confused now. I didn’t say anything about being confused Monday because I thought I knew what I was talking about.” The Hotel Maid testified: “Q. Well, now you are telling us today that the things you testified to Monday are things that somebody told you. Is that right? “A. No, but when he told about Mrs. Shirk being gone, I hadn’t realized that she wasn’t here, but it just seemed to me like she was here. “Mrs. Shirk was a very definite, positive character. She was the owner of the hotel and she was my superior but she didn’t treat anyone that way. “Q. And there would be no confusing what Mrs. Shirk said as compared to what some other employee said, was there, Mrs. . . .? “A. Well, no, probably not. “When I testified Monday I was thinking that Mrs. Shirk had told me. Somebody had told me because I remember that and I remember him going. “Q. Is that as much as you had Monday when you were testifying; namely, an impression of what happened? Is that as much as you testified— “A. Well, I was thinking it was; yes. I thought that she had told me because I knew that if she had of been there she would have told me. “Someone had to tell me he had gone and Monday when I testified I was thinking Mrs. Shirk had told me. I was confused as to the time it happened and I was also confused on the time when Betty came to McPherson after Carmen was here. “Q. That isn’t what I asked you. Not the time of the year. I am asking whether you were confused about the fact that it was three days or a week or something like that before Betty came in. Are you confused about that? “A. I can’t remember. “Q. But you said Monday that you were positive about it. “A. Well— “Q. Now, were you confused then or are you confused now? “A. Both, probably.” We must conclude that because of the inaccuracy and confusion shown to exist in the testimony of the two witnesses who attempted to establish the existence of the oral agreement the proof falls far short of being clear, satisfactory and convincing. It might also be suggested that the conduct of the appellee casts some reflection on the validity of the claim. When Gertrude’s will was read Betty expressed surprise that she fared as well as she did. She made no claim that she had an agreement for more. In her correspondence with the executor and his attorney after the will was read Betty made various appeals for extra largess but never for the discharge of a contractual right. When Betty first decided on litigation it was not for the enforcement of a contractual right but to recover $200,000.00 from Bill for unduly influencing Gertrude in the making of her last will and testament. The appellee permitted the estate to be probated under the will for a period of nine months without protest. She filed her claim five days before the nine months period for filing claims had expired. There is a rather serious controversy as to- whether the claim was in fact filed in time. Such unexplained delay casts serious doubts upon the integrity of the claim. In 69 A. L. R., page 217, it is stated: “. . . It properly may be assumed that anyone having a claim of this land under an oral contract with a person who has since deceased will be reasonably prompt in thereafter asserting it, especially where the circumstances are such as naturally to induce the assertion of the claim if the contract had actually been entered into. And his failure in this respect in and of itself, if unexplained, is sufficient to cast grave doubts upon the integrity of the claim when subsequently asserted, as well as upon the evidence offered to establish it. . . .” This court has had occasion to consider the effect of delay in making a claim where the property claimed is being probated under a will. In Laupheimer v. Buck, 135 Kan. 631, 11 P. 2d 721, it was stated on page 636 as follows: “. . . If plaintiff owned all this property immediately on the death of William Laupheimer, why did she permit the will, which gave it to others, to be probated without protest, and the estate to be administered thereunder for seven months before taking steps to protect her rights? These and other considerations naturally forced themselves upon the attention of the court. This case is of that class in which trial courts are called upon to examine with care and the evidence offered to sustain the contract relied upon. This court, and others, have frequently so ruled. (Cathcart v. Myers, 97 Kan. 727, 732, 156 Pac. 751; James v. Lane, 103 Kan. 540, 549, 175 Pac. 387.) Where the evidence to establish the parol contract relied upon consists of the testimony of plaintiff and his near relatives and immediate friends there is all the more reason for careful scrutiny. Some courts have ruled that the testimony must come from disinterested witnesses. (Andrews v. Athens, 44 Ida. 797, 260 Pac. 243.)” The appellee’s evidence is insufficient to meet the burden which the law places on her to establish the oral contract under which she claims. The conclusion reached renders unnecessary the consideration of other questions raised by appellants. The judgment is reversed with instructions to render judgment for the Executor of the Estate of Gertrude McCourt Shirk, deceased, and for the intervening devisees under the will. approved by the court.	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The opinion of the court was delivered by Schroeder, J.: This is a damage action for personal injuries sustained by Victor Klein (plaintiff-appellee) while unloading a truck owned by one of the defendants. The case was tried to a jury which returned a verdict for the plaintiff in the sum of $35,064.43, upon which judgment was entered, and appeal has been duly perfected. Three questions are presented: (1) Whether the appellants were properly served with summons; (2) whether appellee’s action was barred under the provisions of G. S. 1959 Supp., 44-504; and (3) whether the district court erred in permitting Dr. Norman Hull to give expert medical testimony over appellants’ objections. The pertinent facts may be briefly summarized as follows: The appellee’s employer, Hays City Flour Mills in Hays, Kansas, ordered a load of 100-pound sacks of phosphate from Supreme Feed Mills of Glasgow, Kentucky (defendant-appellant). James R. England (defendant-appellant), an employee 'of Supreme Feed Mills, and another employee drove their employer’s tractor and loaded trailer to Hays. They parked the trailer near a dock at the Hays City Flour Mills, and turned it over to the mill whose duty it was to unload. There were three grain chute openings about twelve inches square in the floor of the trailer. Refore the phosphate was loaded, the floor and grain chute openings were covered with brown paper. While the appellee and his fellow employees were unloading the phosphate, the appellee, who was pulling a loaded dolly, stepped into one of the concealed openings causing him to fall, resulting in the injuries complained of in this action. The original petition naming Supreme Feed Mills, Travelers Insurance Company and James R. England as defendants was filed on January 3, 1963. The petition was amended on May 21, 1963, following sevex-al pretrial motions to add Roger Wells and Lxxther Wells, a partnership, doing business under the firm name of Supreme Feed Mills, Glasgow, Kentucky, as defendants. (The above named parties will hereinafter be designated as appellants when referred to collectively.) Service upon James R. England was obtained through the Secretary of State under the provisions of G. S. 1949, 8-401 and 8-402. Supreme Feed Mills was originally served as a corporation under G. S. 1959 Supp., 66-1314, and after the petition was amended, the additional parties named as defendants were served under the provisions of G. S. 1961 Supp., 17-504 and 66-1314, supra. Travelers Insurance Company was also served pursuant to 66-1314, supra, and 17-504, supra. Each of the appellants individually filed a motion to quash service of summons on the ground that such process, purporting to comply with either 8-401, supra, or 66-1314, supra, was invalid for the reason: “. . . said statute applies only to actions growing out of the use or operation of a motor vehicle on a highway and said petition shows on its face that plaintiff’s claimed damages occurred at and on private property.” These motions were overruled, and the appellants then filed a motion to strike and make more definite and certain, which was also overruled. Thereafter, appellants individually filed demurrers to the appellee’s petition on the groxxnd, among others not here material, that said petition showed on its face that the appellee’s action was barred by the statute of limitations. The demurrers were overruled, and appellants each filed an answer. Issues were joined and the action went to trial on October 29, 1963. The appellants contend the motion to quash service upon England should have been sustained because the factual situation set forth in the petition was insufficient to invoke the jurisdiction of the district court under the provisions of 8-401 and 8-402, supra. G. S. 1949, 8-401 provides: “That the acceptance by a nonresident person of the rights and privileges conferred by existing laws to operate motor vehicles on the public highways of the state of Kansas, or the operation by a nonresident person, or his authorized chauffeur, or agent, of a motor vehicle on the said highways, other than under said laws, shall be deemed equivalent to an appointment by such non resident of the secretary of state of the state of Kansas, or his successor in office, to be his true and lawful agent, upon whom may be served all lawful process in any action or proceeding against said nonresident, growing out of any accident or collision in which said motor vehicle may be involved, while same is operated in tire state of Kansas by said nonresident, or by his authorized chauffeur or agent; and said acceptance or operation of said vehicle shall be a signification of his agreement that any such process against him which is so served on the secretary of state shall be of the same legal force and validity as if served upon him personally within the state.” At the outset we should note that although 8-401, mpra, was amended in 1959 and again in 1961, the language in the statute material to the question before us has not changed. Also, since no question is raised as to the regularity of service under 8-402, supra, it would serve no purpose to pursue this point. Whether jurisdiction is acquired by service of process authorized under 8-401, supra, depends upon what is disclosed on the face of the petition itself. The petition before us, after the usual preliminary allegations concerning the parties, alleges: “6. That on or about the 28th day of June, 1961, while plaintiff was in the employ of the Colorado Milling and Elevator Company of Denver, Colorado, at its district office in Hays, Kansas, and while he was in the performance of his duties on tire job in behalf of his employer, the Colorado Milling and Elevator Company of Denver, Colorado, defendant, Supreme Feed Mills of Glasgow, Kentucky, by and through its agent and servant, defendant, James R. England, did haul and deliver unto the place of business of the district office in Hays, Kansas, of plaintiff’s employer, Colorado Milling and Elevator Company of Denver, Colorado, a load of phosphate and soda wrapped in 100# bag containers in accordance with a prearranged buy and sell agreement between the plaintiff’s employer, Colorado Miffing and Elevator Company of Denver, Colorado, and defendant, Supreme Feed Mills of Glasgow, Kentucky; plaintiff did, thereupon, while in the performance of his duties as an employee of the Colorado Miffing and Elevator Company of Denver, Colorado, at its district office in Hays, Kansas, assist in the unloading of said 100# bags of phosphate and soda from the bed of defendant’s truck onto a dolly which the plaintiff was operating and using at said time and place and did further proceed to load said sacks from the bed of said truck in a careful and prudent manner and while said plaintiff was in the process of turning said dolly about on the bed of defendant’s truck in order to transport said loaded sacks unto the dock of plaintiff’s business place as instructed, when unbeknown to the plaintiff herein and without any warning from the defendant Supreme Feed Mills’ agent and servant and driver of said defendant’s truck, plaintiff stepped into a concealed hole in the bed of defendant’s truck, said hole being concealed and camouflaged by the use of paper being spread over the hole so the same could not be seen or detected by persons walking on the bed of said truck causing plaintiff to suffer severe, permanent and irreparable personal injuries as is hereinafter more particularly set out.” The petition also alleges certain specific acts of negligence which are not relevant to the present issue. The appellants maintain the petition shows the trailer was not on a public highway or being used or operated on a highway at the time of the accident, and therefore, said petition should have been quashed as to England inasmuch as- the legislature intended to limit the scope of 8-401, supra, to only those accidents which occur upon the highways of the state. In other words, they claim the statute does not apply to any accident which occurs on private property. The appellants rely on Kelley v. Koetting, 164 Kan. 542, 190 P. 2d 361, in which this court construed 8-401, supra, as applying only to those actions or proceedings to recover damages to person or property arising out of the use or operation of a motor vehicle by a nonresident on the highways of this state. In the opinion the court said: “. . . In our opinion the words ‘out of any accident or collision do not have the effect of enlarging or extending the act so that accidents or collisions in which a nonresident motorist is involved while exercising the privilege accorded all citizens, resident or nonresident, of transacting personal business on private' property are to be regarded as within the scope of its provisions. . . .” (p. 548.) It was not stated in Kelley v. Koetting, supra, that all accidents occurring on private property were automatically eliminated from within the scope of 8-401, supra. The fundamental question in the instant case is not whether the injury occurred on private property, but whether the loading or unloading of a motor vehicle at the dock is incident to its operation upon the highways. If the cause of the injury is in some way incident to the normal use and operation of a motor vehicle on the highways by a nonresident, then the place where the injury or damage to person or property actually occurs is immaterial. The obvious purpose of 8-401, supra, is to make amenable to suits in the courts of this state those nonresidents who may incur liability as a result of the operation of their vehicles upon our highways. What constitutes “operation” within the meaning of the statute must be determined in light of this purpose. It has frequently been recognized that normal operation of a motor vehicle includes more than its movement over the highways. (Schefke v. Superior Court, 136 Cal. App. 2d 715, 289 P. 2d 542 [1955]; Chiarello v. Guerin Special Motor Freight, 22 N. J. Super. 431, 92 A. 2d 136 [1952]; Hurte v. Lane, 166 F. Supp. 413 [N. D. Fla. 1958]; Stroud v. Water Commissioners, 90 Conn. 412, 97 Atl. 336 [1916]; and Hand v. Frazer, 248 N. Y. S. 557, 139 Misc. 446 [1931].) In Stroud v. Water Commissioners, supra, the court said: “. . . the plaintiffs car [parked on a city street] was as much in the ordinary course of operation on the highway at the time of the injury as if it had been used for shopping, calling, or delivering merchandise. . . .” (p. 415.) (Emphasis added.) Another important consideration is that 8-401, supra, is not limited in its application to any particular type of accident or collision. Ry its express terms the statute is applicable to “any action or proceeding . . . growing out of any accident or collision in which said motor vehicle may be involved, while same is operated in the state of Kansas by said nonresident.” In our opinion the legislature never intended to limit the application of 8-401, supra, to only those vehicles involved in an accident or collision while in motion or at rest within the actual boundaries of a highway. To hold that 8-401, supra, does not encompass a factual situation such as we have before us would be unreasonable, and one contrary to the intention of the legislature which by the enactment of the statute has taken cognizance of the problem encountered by the operation of vehicles in this state by nonresidents. Therefore, we hold the motion to quash service upon England was properly overruled. There is substantial authority to support this conclusion. The plaintiff in McDonald v. Superior Court, 43 Cal. 2d 621, 275 P. 2d 464 (1954), rented a truck from the defendant, a resident of Oregon, for the purpose of transporting a load of furniture to San Francisco. Plaintiff was injured while unloading the truck when a rack on the truck broke away from its supports. Plaintiff proceeded to obtain service upon the nonresident defendant through the California “long-arm statute” which applies to “any accident or collision resulting from the operation of any motor vehicle upon the highways of this state.” (p. 623.) The defendant maintained service under the statute was invalid on the ground that unloading was not a part of the operation of the truck. The court held defendant amenable to service, and added that the normal operation of a vehicle includes more than its movement over the highway. See, also, Aranzullo v. Collins Packing Company, 18 App. Div. 2d 1068, 239 N. Y. S. 2d 398 (1963); Landolphi v. Wilhelmsen, 241 N. Y. S. 2d 942, 39 Misc. 2d 950 (1963); Schefke v. Superior Court, supra; and Chiarello v. Guerin Special Motor Freight, supra. It should be emphasized we are not overruling our prior decision in Kelley v. Koetting, supra, where the nonresident defendant, who had operated his automobile upon the public highways of Kansas and was a professional combine harvester engaged in cutting the plaintiff’s wheat, negligently drove his automobile into the plaintiff’s wheatfield setting fire to twenty-one acres of uncut wheat. Driving an automobile through a wheatfield is not incident to its normal use or operation upon the highways of this state. The appellants next contend service upon Supreme Feed Mills, pursuant to G. S. 1959 Supp., 66-1314, should have been quashed for the reason that said section does not apply where the accident occurs on private property or the causative factor does not relate to the use or operation of the vehicle. The petition in the instant case specifically alleges that the appellants were negligent in operating the truck with a defective bed upon the highways of the state of Kansas, contrary to the interests and safety of the public, contrary to the interests and safety of the plaintiff, and contrary to the provisions of 66-1314, supra. G. S. 1959 Supp., 66-1314 provides in part: “Every motor vehicle transporting passengers for compensation or property for which no permit has been issued . . . shall be properly covered by liability insurance . . . which liability insurance shall bind the obligors thereunder to pay compensation for injuries to persons and loss of or damage to property resulting from the negligent operation of said carrier. The insured under said policy of liability insurance and the owner, proprietor, and driver of said vehicle and the firm, person, or corporation in whose service the same is being operated shall by sending said motor vehicle into the state of Kansas and making out and delivering the registration card required by law irrevocably appoint and constitute the secretary of the state of Kansas, process agent, for him, it, or them, upon whom service of summons may be made in any action filed in the proper court in the state of Kansas in the same manner as service is made upon a foreign corporation in the state of Kansas by serving process upon the secretary of state. No motor vehicle transporting passengers or property for compensation shall be allowed to proceed from any port of entry into the state of Kansas upon the highways thereof until and unless it has been duly registered and inspected at such port of entry or registration office and a clearance certificate issued therefor. . . .” (Emphasis added.) Our previous discussion concerning the loading and unloading of a truck as being incident to its operation upon the highways would appear to settle this issue; however, there are some additional factors to consider when construing 66-1314, supra. The language contained in 66-1314, supra, unlike the construction placed upon 8-401, supra, in Kelley v. Koetting, supra, does not limit the application of the statute to those accidents arising out of the use or operation of a motor vehicle on the highways of the state. It is only necessary for the injuries to result “from the negligent operation of said carrier.” Although this court has not previously interpreted 66-1314, supra, it has at various times construed G. S. 1961 Supp., 66-1,128, which reads in part: “No certificate, permit, or license shall be issued by the state corporation commission to any ‘public motor carrier of property,’ ‘public motor carrier of passengers,’ ‘contract motor carrier of property or passengers,’ or ‘private motor carrier of property,’ until and after such applicant shall have filed with, and after same has been approved by the state corporation commission, a liability insurance policy . . . which liability insurance shall bind the obligors thereunder to pay compensation for injuries to persons . . . resulting from the negligent operation of such carrier. . . .” (Emphasis added.) The quoted statutes are cross-referenced in ihie 1961 Supplement to the General Statutes of Kansas, and it would appear both were enacted for the purpose of requiring persons using the Kansas highways as commercial carriers to provide sufficient insurance on their motor equipment to protect the public in case of injuries sustained from the negligent operation of such vehicles. The provisions of 66-1314, supra, apply to motor carriers without permits while the provisions of 66-1,128, supra, are applicable to those requiring a permit or license. Although 66-1,128, supra, does not provide for substituted service, such service upon nonresident defendants subject to that provision may be obtained through other statutes. The important consideration is that almost identical language is contained in the statutes with reference to the negligent operation of a carrier. Since the statutes are quite similar in form and substance, and were enacted for substantially the same purpose, our prior decisions construing 66-1,128, supra, are material in determining rights and liabilities under 66-1314, supra. (Bishop v. Board of County Commissioners, 188 Kan. 603, 605, 364 P. 2d 65.) This court has held that under 66-1,128, supra, it is immaterial whether the accident occurs while the carrier is being operated upon private property or upon a highway. (Lamb v. Hartford Accident & Indemnity Co., 180 Kan. 157, 300 P. 2d 387; and Amon v. Lueck, 194 Kan. 89, 397 P. 2d 365.) In the Lueck case the court said: “. . . There can be no question but that the petition sufficiently alleged that the accident occurred while the defendant Lueck was engaged in the operation of his business for which the permit was issued, and it is immaterial whether Lueck was operating his truck upon the public street or highway or on private property while engaged in the performance of a service under the permit issued. The statute specifically provides that the liability insurance shall bind the insurer to pay compensation for injuries to persons resulting from the negligent operation of such carrier. It does not say from the negligent operation of the carrier while on the highway. Had the legislature intended to make such a limitation, it would have so provided.” (p. 92.) (Emphasis added.) In our opinion the foregoing reasoning is equally applicable to 66-1314, supra, and under such statute whether the accident occurs while the carrier is being operated upon private property or upon the highways is immaterial. We, therefore, hold the motion to quash filed by Supreme Feed Mills was properly overruled. Appellants also contend the district court erred in overruling the motion to quash filed by Travelers Insurance Company. They cite the same authorities and make the same arguments that were made in support of the motion of Supreme Feed Mills. It was held in Fitzgerald v. Thompson, 167 Kan. 87, 204 P. 2d 756, under 66-1,128, supra, the liability of an insurer who gives a liability insurance policy to enable a public or contract carrier of property or passengers to obtain a certificate or license as such, is a tort liability for the negligent operation of such carrier. In the opinion the court said. “If the petition states a cause of action in tort against the permit holder and alleges the filing and approval of the liability policy it states a cause of action against the insurer. . . .” (p. 91.) A holding to the same effect is Amon v. Lueck, supra. The petition before us alleges Travelers issued its liability policy to Supreme Feed Mills as required by 66-1314, supra, as a condition precedent to the right of Supreme Feed Mills to transport its merchandise and products into the state of Kansas by a motor vehicle for which no permit had been issued. There is no sound reason why the liability of an insurer who gives a liability insurance policy to enable a carrier to enter the state and use its highways pursuant to 66-1314, supra, should be any different than the liability of an insurer who gives a liability insurance policy to enable a carrier to obtain a certificate or license under the provisions of 66-1,128, supra. Therefore, based upon our decisions in Fitzgerald v. Thompson, supra; Lamb v. Hartford Accident & Indemnity Co., supra; and Amon v. Lueck, supra; and numerous other decisions cited in those cases, we hold the liability of Travelers under the allegations of the instant petition, is a tort liability for the negligent operation of the carrier, and it is immaterial whether the accident occurs while the carrier is being operated upon a highway or upon private property. It follows the district court did not err in overruling Travelers’ motion to quash. Appellants contend the district court erred in overruling the demurrers filed by the appellants for the reason that the appellee’s action was barred under G. S. 1959 Supp., 44-504, which provides in part: “When, the injury ... for which compensation is payable under this act was caused under circumstances creating a legal liability against some person other than the employer to pay damages, the injured workman . . . shall have the right to take compensation under the act and pursue his or their remedy by proper action in a court of competent jurisdiction against such other person. . . . Such action against the other party, if prosecuted by the workman, must be instituted within one (1) year from the date of the injury, . . . Failure on the part of the injured workman ... to bring such action within the time herein specified, shall operate as an assignment to the employer of any cause of action in tort which the workman . . . may have against any other party for such injury . . . and such employer may enforce same in his own name or in the name of the workman, dependents or personal representatives for their benefit as their interest may appear by proper action in any court of competent jurisdiction. . . .” As previously noted the accident occurred June 28, 1961, but suit was not filed until January 3, 1963. With regard to the parties bringing the action the petition states: “. . . plaintiff brings this action for himself, his employer, Colorado Milling and Elevator Company of Denver, Colorado, and his employers insurance carrier, American Motorists Insurance Company, as their individual interests appear.” Since the petition sets out certain benefits received under the workmen’s compensation act, appellants urge that under 44-504, supra, after one year has passed from the date of the injury, the sole right to bring die action is assigned to the employer who has the right to enforce the action in the employee’s name or its own name, but that after the expiration of one year the injured workman is not authorized to be the moving party to bring the action for himself and others. This court construed 44-504, supra, in Sundgren v. Topeka Transportation Co., 178 Kan. 83, 283 P. 2d 444, where it stated: . . The statute was not enacted to relieve, alter or vary in any way the liability for the tort of the third party wrongdoer. (Moeser v. Shunk, 116 Kan. 247, 226 Pac. 784.) The liability of the tort-feasor remains the same for two years after the injury no matter who brings the action — the employee or the employer. Workmen’s compensation statutes are to be liberally construed with the view of making effective the legislative intent and not for the purpose of nullifying it. (Clifford v. Eacrett, 163 Kan. 471, 183 P. 2d 861.)” (p. 88.) The issue raised by appellants was decided in Lady v. Ketchum, 186 Kan. 614, 352 P. 2d 21, where the plaintiff brought an action for the wrongful death of her husband. Defendants in their answer maintained the plaintiff had received benefits under the workmen’s compensation act, and that since her action against the third party was filed more than eighteen months after the injury occurred, her action was barred under the provisions of 44-504, supra. Plaintiff was allowed to amend her petition, and it was set out for the first time that her action was brought by: . . the Plaintiff on behalf of herself, her minor children, Security Milling Company, Inc., of Abilene, Kansas, and Lumberman’s Mutual Casualty Company of Chicago, Illinois, as their interests may appear. . . .’” (p. 617). Defendants argued on appeal that neither the deceased’s employer nor its insurance carrier had at any time commenced an action, and that plaintiff’s reference to them in her second amended petition was not in compliance with 44-504, supra, which authorizes the employer to bring the action in his own name or in the name of the dependents after eighteen months from the date of the injury of the deceased workman. Defendants claimed the second amended petition attempted to bring the action in a form and manner just opposite that authorized by the assignment portion of 44-504, supra. This court rejected the defendants’ argument and in the opinion stated: “We believe defendants’ interpretation of the statute is too narrow. . . . We therefore hold the action was not barred. . . .” (p. 621.) The above quoted language from the petition in the instant case compares favorably with that quoted from the petition in Lady v. Ketchum, supra. Therefore, we hold appellants’ demurrers were properly overruled. Error is predicated upon the action of the trial court in allowing Dr. Hull to give expert medical testimony over appellants’ repeated objections. Appellants maintain the testimony of Dr. Hull was im proper inasmuch, as it was based in part upon history given by the appellee, upon consultation with the attending physician, Dr. Brewer, upon Dr. Brewer’s notes and records, and upon X-rays and hospital records. It would serve no useful purpose to detail the evidence complained of. However, Dr. Hull testified in substance that he examined the appellee on October 28, 1963, for the purpose of testifying at the request of Dr. Brewer who was unable to appear at the trial; that he had consulted with Dr. Brewer and reviewed his office records; and that he had referred to the hospital records and X-rays. He further testified that plaintiff was suffering from a ruptured disc, and that in his opinion, plaintiff’s disability for light work was about 10 to 15 percent as compared to 30 percent for heavy labor. It has long been settled that an expert witness may base his opinion upon matters within his personal knowledge or observation, or upon competent evidence in the case, or upon both. Likewise, it has been held that a physician may not testify as to what a patient said in respect to past history of the case, or the cause or duration of the injury. Neither can he give an opinion based partially upon his personal examination and partially upon what the patient told him in reference to the past history of the case, and also upon statements of third persons in reference thereto. (A. T. & S. F. Rld. Co. v. Frazier, 27 Kan. 463; Murphy v. Edgar Zinc. Co., 128 Kan. 524, 278 Pac. 764; Priest v. Life Insurance Co., 116 Kan. 421, 227 Pac. 538; and Van Pelt v. Richards Paint & Paper Co., 136 Kan. 212, 14 P. 2d 632.) The history of the case is within the hearsay rule and therefore is not a proper foundation for an opinion based on' competent evidence. If, however, the so-called “history” is made up of facts which in themselves are competent evidence, and which are in evidence, then any objection to the use of such history must fall. (State v. Keester, 134 Kan. 64, 4 P. 2d 679.) The record before us does not affirmatively show that Dr. Hull relied on the statements of the injured plaintiff, in making his findings, except that Dr. Hull testified plaintiff advised him of the date of the injury, and the circumstances leading up to it. The plaintiff had previously offered testimony concerning the date and circumstances of the accident. Therefore, it would appear the testimony of the doctor was competent in that the “history” upon which Dr. Hull based his opinion was made up of facts which constituted competent evidence in and of themselves — facts which had actually been put in evidence in the course of the plaintiff’s own testimony. Appellants also object to Dr. Hull’s testimony on the ground that it was based in part upon consultation with Dr. Brewer and upon examination of Dr. Brewer’s records. There is no showing as to how or in what manner Dr. Hull’s testimony was influenced by his consultation with Dr. Brewer. We have carefully examined this record and in our opinion there was ample medical evidence to support the judgment. To reverse this judgment because Dr. Hull may have based his opinion partially upon improper considerations, without any indication upon cross examination by the appellants as to how far those considerations affected his opinion, if at all, would be giving undue weight to what may have been only a technical inaccuracy. Dr. Hull was competent to testify as an expert from his personal examination of the appellee, and we think the record fails to show that his opinion was based upon information gathered from his consultation with Dr. Brewer to such a degree as to require a reversal of the judgment. We have considered appellants’ arguments concerning the hospital records and X-rays, but find them to be without sufficient merit to require comment. Other assignments of error not heretofore mentioned have been reviewed together with the authorities cited in support thereof, but it does not affirmatively appear the appellants have been denied a fair trial or that such errors, if any, have prejudicially affected the substantial rights of the appellants. The judgment of the lower court is affirmed.	[ -12, -24, -3, 13, 10, 98, 58, -38, 83, -95, 39, 83, -17, -58, 13, 105, 119, 61, -44, 63, -9, -77, 19, -6, -45, 119, -5, -59, -72, 74, 100, -26, 77, 64, 10, -107, -26, -64, -63, 28, -52, 4, 40, -3, 81, 0, 56, 42, 20, 79, 48, -98, 99, 40, 29, -57, 45, 40, 107, 45, -47, -15, -22, 5, 95, 18, -80, 68, -98, 37, -40, 63, -104, 48, 40, -24, 58, -90, -122, -44, 35, -103, 12, 102, 98, 17, 21, -123, 108, -72, 14, -33, -115, -57, -80, 24, -63, 0, -66, -99, 106, 22, 30, 124, -4, 29, 31, 109, 7, -117, -12, -77, -113, 112, -98, 31, -21, -121, 50, 113, -52, -94, 93, 71, 123, 31, -57, -110 ]
The opinion of the court was delivered by Parker, C. J.: The defendant, Wayne E. Ralph, was charged with the crimes of second degree forgery and uttering, as defined by statute (G. S. 1949, 21-608 and 21-609 [now K. S. A. 21-608 and 21-609].) After his arrest on the charges indicated, and preliminary proceedings about which no complaint is made, he was charged by information in the district court of Sedgwick County with the commission of such crimes. In that court, while represented by competent court-appointed counsel, namely, John Pyles of Wichita, defendant entered a plea of guilty to each of the crimes charged in the information and was thereupon sentenced, for their commission, to the state penitentiary under the provisions of G. S. 1949, 21-631 and 21-107a (now K. S. A. 21-631 and 21-107a), for the period of time therein prescribed. Subsequently defendant gave a pro se notice of appeal to this court from his judgment of conviction and sentence. Later, and pursuant to his motion, the trial court directed that he be furnished with a free transcript of the record pursuant to G. S. 1961 Supp., 62-1304, and, in conformity with our Rule No. 56, ultimately appointed E. J. Malone, a capable attorney of Wichita, to represent him in this court on appeal. Mr. Malone fulfilled this obligation by filing a proper abstract and brief and by orally arguing the cause on the date appellant’s appeal was heard by this court on its merits. The record in this case presents but three questions. They will be considered in the order in which they are discussed in the abstract and briefs. Appellant’s first contention is that he was not properly represented by counsel at the time of arraignment and sentence as contemplated by G. S. 1961 Supp., 62-1304. This claim finds its answer in the court reporter’s transcript of the record. It is to be noted such transcript is included in the appellant’s abstract, is certified by both the reporter and the appellant’s attorney as a correct copy of the transcribed record, and must be accepted as reflecting a true and accurate account of the trial court proceedings therein set forth and described. So far as material to the claim now under consideration, and other contentions to be presently discussed, pertinent portions of the reporter’s transcript, as abstracted by appellant, read: “The Transcript” “Page 1 shows the date of hearing before the Honorable E. E. Sattgast, Judge, to be Noember 22, 1961, with J. O. Ballinger Deputy County Attorney appearing for the State, and John Pyles for Defendant. “The Court: Wayne E. Ralph “Mr. Ralph: Yes, sir “The Court: You are Wayne E. Ralph, are you, sir? “Mr. Ralph: Yes, sir. “The Court: And you are represented by Mr. John Pyles? “Mr. Ralph: Yes, I am. “Mr. Pyles: I been appointed.” "The Court: At this time do you waiver [waive] the reading of the informal [information] and formal arraignment? “Mr. Ralph: Yes, sir. “The Court: You are charged in one count, I guess it is, with forgery under section 21-608 of the General Statutes, and uttering. At this time do you care to enter your plea? “Mr. Ralph: Yes, your honor. “The Court: And if so, how do you plead? “Mr. Ralph: Guilty, sir. “The Court: And you plead guilty because you are guilty? “Mr. Ralph: Yes. “The Court: Do you know of any reason why— “Mr. Ballinger: (Interrupting) Now, Your Honor there is uttering on this. “The Court: Yes, I said one count. There is a charge of uttering under Section 21-609. And do you plead to that? “Mr. Pyles: Yes, Your Honor. “The Court: And how do you plead? “Mr. Ralph: Guilty, sir. “The Court: And you plead guilty because you are guilty? “Mr. Ralph: Yes, sir. “The Court: Do you know of any reason why sentence should not be pronounced? “Mr. Pyles: No, we do not know of any reason. “Mr. Ballinger: Before we pass sentence, I have talked to Mr. Ralph and Mr. Pyles both. The State has talked to both of them about it and is going to ask the Court to invoke the provisions of Section 21-217 [no such section appears in the statutes] and 107a and 21-109 and introduce at the request of the State the DJ with the consent of the defense attorney, I understand. “Mr. Pyles: I have. “The Court: You admit there have been previous felonies? “Mr. Ralph: Yes, sir. “Mr. Ballinger: At least two of them. “The Court: The court will invoke, in pronouncing sentence, Section 21-107 [Repealed, Laws of 1937, Chapter 209, Section 1] and 107a, and under your plea of guilty to forgery under Section 21-608 the Court will invoke the habitual criminal act and sentence you to 15 years at hard labor in the State Penitentiary at Lansing, Kansas. “Mr. Pyles: That is concurrent. “The Court: I haven’t sentenced him yet. It’ll be the further judgment of the court upon your plea of guilty to uttering under Section 21-609 of the General Statutes of Kansas that you be sentenced to the State Penitentiary by invoking the habitual criminal act to serve a term of 15 years. I’ll permit both terms to run consecutively. “Mr. Pyles: No. “The Court: Concurrently, concurrently. ...” “Mr. Pyles: Let the record show that I didn’t forget to ask for a parole. “The Court: And I denied your motion to parole. Let the record show that too, sir. “Mr. Pyles: Alright. Thank you.” Nothing would be gained by repeating or further laboring what is to be found in the first portion of the court reporter’s transcript, as heretofore quoted. It sufficies to say the statements therein recited unmistakably establish, in language so clear and unequivocal it is subject to no other interpretation, that appellant was represented by counsel at the time of his arraignment and sentence, as contemplated by 62-1304,' supra. It follows the claim now under consideration lacks merit and cannot be upheld. Support for the conclusion just announced is to be found in our decisions. See State v. Trams, 189 Kan. 393, 369 P. 2d 223, where it is held: “Upon appeal, if susceptible of a reasonable interpretation to the contrary, the record of the proceedings of the trial court in a criminal action will not be interpreted to show error.” (Syl. f 7.) And in the opinion said: “Long ago, in The State v. Durein, 70 Kan. 1, 78 Pac. 152, this court committed itself to the rule that in a criminal appeal the record of the proceedings in the trial court will not be interpreted to show error if it be susceptible of a reasonable interpretation to the contrary. (State v. Smith, 171 Kan. 722, 726, 237 P. 2d 388.)” (p. 897.) The sole argument advanced by appellant in support of his second contention reads: “Inasmuch as the court made no provision to look after the rights of defendant until after his arraignment and other matters concerning him and the offense with which he was charged, he was deprived of due process.” Portions of the records, to which we have heretofore referred, and what has been previously stated and held, fully demonstrate this claim raises no new or additional issue and must be denied. Appellant’s third and final claim is based upon the general premise that he was deprived of his rights as contemplated by G. S. 1949, 62-1516 (now K. S. A. 62-1516), and the Fifth Amendment to the Constitution of the United States. Specifically, in support of this claim, he raises two points. These points, hereinafter identified as (a) and (b) will now be stated and, for purposes of further discussion, will be referred to as indicated. (a) Appellant was compelled to furnish evidence against himself with respect to prior conviction, (b) Appellant was erroneously sentenced inasmuch as there was no evidence introduced to warrant the court to invoke the habitual criminal statute (G. S. 1949, 21-107a (now K. S. A. 21-107a). Appellant’s claim as to point (a) lacks merit and cannot be upheld. The inescapable facts, as disclosed by quoted portions of the transcript, make it clearly appear that at the hearing upon the applicability of the habitual criminal statute (21-107a, supra) appellant and his counsel, in open court, freely and voluntarily admitted appellant had been convicted of previous felonies. Under these circumstances, and other facts set forth in the transcript, it cannot be successfully argued that appellant was compelled to furnish evidence against himself in violation of his rights under the Fifth Amendment to the Constitution of the United States or that he was deprived of rights under 62-1516, supra. After an extended examination of the many cases dealing with issues similar to the one raised by appellant in point (b) of his third contention we have no difficulty in concluding this claim of error is also devoid of merit and must be denied. We now direct attention to just a few of our decisions which not only support but compel the conclusions herein announced with respect to all claims of error advanced by appellant. In State v. Messmore, 175 Kan. 354, 264 P. 2d 911, we held: “Although a person convicted of a felony ordinarily should be timely apprized that an increased sentence will be demanded, pursuant to G. S. 1949, 21-107a, by reason of a prior felony conviction, a sentence will not be vacated where the uncontradicted evidence discloses such person, between the time of the instant conviction and sentencing, freely admitted former felony convictions, did not object to the imposition of an increased sentence on the ground he was not notified such sentence would be demanded and did not assert lack of notice in his motion for a new trial.” (Syl. f 2.) In State v. Graham, 172 Kan. 627, 242 P. 2d 1067, it is said: “Finally it is argued appellant’s sentence, in conformity with the provisions of G. S. 1949, 21-107a, is invalid because the trial court did not have before it evidence sufficient to warrant its finding that appellant had twice before been convicted of a felony punishable by confinement in the penitentiary. Specifically this objection is based upon the premise drat at the time of sentencing appellant the trial court did not have before it documentary evidence establishing such convictions. Under existing conditions and circumstances such evidence was neither necessary or required. Appellant, himself, had admitted them and no claim is made that his testimony in that respect was not true.” (pp. 629, 630.) See, also, State v. Haught, 180 Kan. 96, 299 P. 2d 573, which reads: “In the instant case it is disclosed that, before sentence was imposed by the trial court, defendant admitted three prior convictions of felonies in other states, and he cannot now be heard to say that a sentence under the Habitual Criminal Act (G. S. 1949, 21-107a) is invalid. (State v. Graham, supra; Reffitt v. Edmondson, 177 Kan. 83, 85, 276 P. 2d 341.) . . .” (p. 100.) For another interesting decision see Reffitt v. Edmondson, 177 Kan. 83, 276 P. 2d 341, where it is said: “Petitioner next points out the failure of the trial court to comply with the requirements of G. S. 1949, 21-107a. This is what is known as the habitual criminal act. It provides every person convicted a second time of felony shall be confined not less than double the time of the first conviction. The record furnished us by the petitioner shows that at the time of sentence the county attorney informed the trial court that the petitioner had told him he had been in the Colorado penitentiary on a felony charge. Presumably this statement was made in the presence of petitioner and was not contradicted by him. The section provides the judgment shall not be given for the increased penalty unless the court shall find from the record and other competent evidence the fact of former convictions. Petitioner argues the statement made by the county attorney to the trial court was not competent evidence under the provisions of the statute. This argument is not good in view of the fact that the statement was made in the presence of the defendant and not disputed by him.” (p. 85.) See, also, State v. Watkins, 190 Kan. 446, 375 P. 2d 634, which states: “On cross-examination the appellant testified without objection that he had been convicted of giving bogus checks in the state of California and served thirty-seven months at the California Men’s Colony, and that he had been convicted of writing insufficient funds checks in 1958 in the state of Texas where he had served three years for such offenses. By such voluntary testimony without objection by the appellant or his counsel, the appellant waived any right to assert error because the sentence was imposed pursuant to the habitual criminal act. (21-107a, supra; see Oyler v. Boles, 368 U. S. 448, 7 L. Ed. 2d 446, 82 S. Ct. 501; and Browning v. Hand, 284 F. 2d 346.)” (p. 447.) And see Johnson v. Crouse, 191 Kan. 694, 383 P. 2d 978, which reads: “The petitioner asserts he was not given reasonable notice or apportunity to be heard prior to being sentenced by the district court under G. S. 1949, 21-107a, as an habitual criminal. This case is similar in many respects to State v. Messmore, 115 Kan. 354, 264 P. 2d 911, where it was held that when a defendant does not object to the notice given, freely admits the former felony convictions, and does not object to the imposition of the increased sentence, notice is waived and the judgment will not be set aside. Likewise, it is similar to Sanders v. Hand, 190 Kan. 457, 375 P. 2d 785, where the petitioner was not informed of the state’s intention to request sentencing as an habitual criminal until he was before the court for judgment and sentence. In the opinion it was said: . . the petitioner was present in person and by counsel at the time the state requested the district court to invoke the habitual criminal act and increase the sentence. Neither he nor his attorney objected to the application of the statute in sentencing, or attacked the authenticated records of the two previous felony convictions. The court gave them an opportunity to do so, but they remained silent. The time for complaint was then, not now. The claim that the petitioner was denied due process of law is rejected, and the writ is denied.’ (l.c. 460.)” (pp. 698, 699.) We find nothing in the record or in arguments advanced respecting the appellate issues involved to require, warrant or permit a reversal of the judgment. Therefore it must be and is hereby affirmed.	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Per Curiam: This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against Kevin Peter Shepherd, of Topeka, an attorney admitted to the practice of law in Kansas in 2000. On January 7, 2009, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). On January 23, 2009, the respondent filed an answer to the formal complaint. On April 21, 2009, a hearing was held before a panel of the Kansas Board for Discipline of Attorneys, where the respondent appeared in person and was represented by counsel. The hearing panel determined that the respondent violated KRPC 1.15(a) (2009 Kan. Ct. R. Annot. 507) (safekeeping property), KRPC 1.15(d)(1) (preserving client funds), KRPC 1.15(d)(2)(iii) (maintain records of funds), KRPC 3.3(a)(1) (2009 Kan. Ct. R. Annot. 545) (candor toward tribunal), and KRPC 8.4(c) (2009 Kan. Ct. R. Annot. 602) (conduct involving dishonesty, fraud, deceit, or misrepresentation). Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court: “FINDINGS OF FACT “Representation of Larry Bailey “2. In September, 2003, the Respondent agreed to represent Larry Bailey in a criminal case pending in the Shawnee County District Court for a flat fee of $10,000. Mr. Bailey had been charged with felony manufacture of methamphetamine and other misdemeanor charges. “3. At the time Mr. Bailey retained the Respondent, Mr. Bailey had $3,000 in his Shawnee County jail account. From that money, the Respondent assisted Mr. Bailey in posting two bonds, each in the amount of $1,000. The Respondent paid himself $800 of the remaining money and provided the last $200 to Mr. Bailey. “4. In October, 2003, the Respondent agreed to represent Mr. Bailey in all of his pending cases. At the time, Bailey also had numerous misdemeanor cases pending in the Shawnee County District Court and several cases pending before the Topeka Municipal Court. Further, Mr. Bailey also had a limited civil action pending before the Shawnee County District Court. Later, the Respondent represented Mr. Bailey in an action for divorce. The Respondent’s fee for representing Mr. Bailey in all of the cases was a flat fee of $15,000. “5. On December 29, 2003, the Respondent prepared Power of Attorney for Mr. Bailey’s signature. Mr. Bailey executed the document and the Respondent was granted Power of Attorney. Mr. Bailey provided the Respondent with a Power of Attorney in order for the Respondent to sell real property in behalf of Mr. Bailey. “6. The Respondent sold Mr. Bailey’s property and the Respondent received $22,508.10 in proceeds from the sale. The Respondent paid himself his flat fee of $15,000. The Respondent provided the remaining $7,508.10 to Mr. Bailey. “7. While the Respondent initially deposited the $15,000 into his trust account, it was withdrawn from his trust account, in its entirety, shortly thereafter. “8. In May, 2004, Mr. Bailey asked the Respondent to handle his financial affairs. Meaning, Mr. Bailey asked the Respondent to receive and deposit his Social Security Disability checks, his Veterans Administration checks, and other monies, pay his bills, and distribute the remaining funds. The Respondent agreed. The Power of Attorney that Mr. Bailey previously granted to the Respondent was still in effect and allowed the Respondent to act in this manner. “9. Beginning in May, 2004, the Respondent received monthly Social Security Disability checks in the amount of $666 and monthly Veterans Administration checks in the amount of $2,345. Additionally, the Respondent received bond refunds in behalf of Mr. Bailey in the total amount of $3,000. The Respondent and Mr. Bailey agreed that the Respondent was to be paid an additional $200 per month to handle Mr. Bailey’s financial affairs. “10. The Respondent did not open a separate account for Mr. Bailey. Rather, the Respondent deposited some of Mr. Bailey’s checks into the Respondent’s trust account, some of the checks into the Respondent’s business account, and some of the checks into the Respondent’s personal account. The Respondent also cashed some of Mr. Bailey’s checks without first depositing the proceeds into any account. “11. In October, 2004, Mr. Bailey was incarcerated in the Shawnee County jail. Later, Mr. Bailey was transferred to the Lansing State Penitentiary. “12. While Mr. Bailey was incarcerated, Mr. Bailey contacted the Respondent and told him that his motor home had been impounded and that the Respondent needed to retrieve it before it was sold by the city. The Respondent failed to retrieve the motor home and the city sold it at auction. Because Mr. Bailey lost his motor home through tire Respondent’s lack of diligence, the Respondent credited Mr. Bailey’s bill $1,500. “13. Robert Straub, Auditor for the Disciplinary Administrator’s office, investigated the Respondent’s trust account. Mr. Straub asked tire Respondent for his records relating to Mr. Bailey’s financial affairs. However, the Respondent failed to keep complete records of Mr. Bailey’s financial affairs. The Respondent pieced together some of the information for Mr. Straub. “14. Eventually, Mr. Straub was able to determine that the Respondent received $51,656.50 but only paid out $46,513.17 on behalf of Mr. Bailey. Consequently, tire Respondent should continue to have $5,143.33 in Iris trust account or a separate account for Mr. Bailey. “15. While tire investigation was pending, Mr. Bailey died. “16. Prior to the hearing on this matter, the Respondent placed $5,143.33 in his trust account to hold in behalf of Mr. Bailey’s heirs. “17. The Respondent commingled Mr. Bailey’s money with his own. He failed to maintain adequate records. The Respondent never provided Mr. Bailey with an accounting of his money. The Respondent failed to promptly disburse the remaining funds to Mr. Bailey, or later, Mr. Bailey’s heirs. Finally, the Respondent converted Mr. Bailey’s money and used it personally. “18. To date, the Respondent continues to owe Mr. Bailey’s heirs $5,143.33. At the hearing on this matter, the Respondent explained that while he knows that Mr. Bailey has two daughters, he has not attempted to locate them or provide them with the monies owed because they have serious drug problems. “Bankruptcy “19. On October 14,2005, the Respondent filed for the bankruptcy protection of Chapter 7 of the United States Bankruptcy Code in the United States Bankruptcy Court for the District of Kansas. Cary Standiferd represented the Respondent and Patricia Hamilton served as the Chapter 7 bankruptcy trustee on the Respondent’s bankruptcy case. “20. In the Voluntary Petition filed in the bankruptcy case, the Respondent answered certain questions regarding his personal property as of the time he filed the petition. Specifically, the Respondent was asked to divulge whether he had any outstanding accounts receivable as of the date of the filing. In Schedule B, the Respondent represented that he had no outstanding accounts receivable as of the date of filing the bankruptcy petition. At the time the Respondent filed the bankruptcy petition, he was required to sign a Declaration Concerning Debtor’s Schedules. The declaration provides: DECLARATION CONCERNING DEBTOR’S SCHEDULES ‘DECLARATION UNDER PENALTY OF PERJURY BY INDIVIDUAL DEBTOR 1 declare under penalty of perjury that I have read the foregoing summary and schedules, consisting of 14 sheets, and that they are true and correct to tire best of my knowledge, information, and belief.’ The Respondent signed the declaration, electronically, on October 14, 2005. “21. The first meeting of creditors was scheduled for November 17, 2005. The Respondent failed to appear because he was in a jury trial. As a result, the Chapter 7 [trustee] rescheduled the meeting for December 13, 2005. “22. On December 13, 2005, the Chapter 7 [trustee] held the first meeting of creditors. The Respondent appeared with Mr. Standiferd. During the meeting, the Respondent testified under oath as follows: ‘MS. HAMILTON: The schedules and Statement of Financial Affairs that have been filed on your behalf, did you sign those documents? ‘MR. SHEPHERD: Yes, I did. ‘MS. HAMILTON: And before you signed them had you read them? ‘MR. SHEPHERD: Yes, I did. ‘MS. HAMILTON: Is the information contained in the documents based on your own knowledge? ‘MR. SHEPHERD: Yes. ‘MS. HAMILTON: To the best of your knowledge, did you list all of your property? ‘MR. SHEPHERD: Yes. ‘MS. HAMILTON: And did you list all of your creditors? ‘MR. SHEPHERD: Yes. ‘MS. HAMILTON: And can you think of any changes or corrections that should be made to any of the documents? ‘MR. STANDIFERD: We do have one change. ‘MR. SHEPHERD: Adding a creditor. ‘MS. HAMILTON: All right. Aside from the addition of the creditor, can you think of any other changes or corrections? ‘MR. SHEPHERD: No, ma’am.’ Later, in the first meeting of creditors, the following exchange occurred: ‘MS. HAMILTON: All right. Let’s go down die list. Now, on the date that you filed you don’t have any accounts listed. Now, I presume that you bill on a monthly basis? ‘MR. SHEPHERD: Yeah, but I do a lot of criminal work, and get my fees a lot of that is up front. ‘MS. HAMILTON: Okay. ‘MR. SHEPHERD: So, they pay a flat fee up front, and it takes them up until a certain point and then they pay another flat fee. ‘MS. HAMILTON: Okay. ‘MR. SHEPHERD: Some people are on payments. ‘MS. HAMILTON: Okay. Well, that’s what I need to know is those that are on payments and on the date you filed, I need — what I’d like to see is your billing statements. If you could just show me — I don’t want to see anything about the detailed time entry, just the amount billed. I’d like to see your billing statements for September and October. ‘MR. SHEPHERD: Just September and October? ‘MS. HAMILTON: Well, those would be amounts I believe that would be due on the date that you filed, which would be October 14th. ‘MR. SHEPHERD: Uh-huh. ‘MS. HAMILTON: And to the extent that any of drose were paid. ‘MR. SHEPHERD: You want to know which ones were paid and which ones were billed out? ‘MS. HAMILTON: Right. ‘MR. SHEPHERD: Okay. ‘MS. HAMILTON: And were still due. Now, since you’ve filed on October 14th has anyone paid you for amounts that you would have billed on or prior to the date tirat you filed, October 14th? ‘MR. SHEPHERD: Has someone paid me for a bill I sent out before October 14th after October 14tír? ‘MS. HAMILTON: Right. Because on the date that you filed ‘MR. SHEPHERD: Yes. ‘MS. HAMILTON: Right. And I’ll need an accounting of those funds. ‘MR. SHEPHERD: Okay. ‘MS. HAMILTON: Right. Because on the date that you filed those accounts became part of the estate so I’ll need to know what they were, how much they were, who owes them, and then while I’m not opposed to having you collect those, they would need to be turned over to tire bankruptcy estate if they were sufficient to administer “23. On March 3, 2006, Judge Janice Karlin signed an order granting tire Respondent a discharge. “24. On March 14, 2006, the Respondent filed an Amendment to Debtor’s Schedules. In the amendment, tire Respondent asserted tirat, as of the filing date, he had $10,228 in outstanding accounts receivable. “25. After the Respondent filed tire amendment, the Respondent stated tirat only $2,380 of the outstanding accounts receivable were collectable. “26. On July 6, 2006, the Chapter 7 [trustee] filed a motion for turnover. In her motion, the Chapter 7 [trustee] sought an order from the court directing the Respondent to turn over the $2,380 in accounts receivable and other documents necessary to administer the bankruptcy estate within 20 days. “27. On July 19, 2006, tire Chapter 7 [trustee] filed a motion to approve compromise and settlement with debtor. In that motion, tire Chapter 7 [trustee] sought court approval for her agreement with the Respondent regarding a payment plan regarding the outstanding accounts receivable. “28. Later, on July 25, 2006, the Chapter 7 [trustee] withdrew her motion for turnover because the Respondent had entered into a repayment plan with the Chapter 7 [trustee]. “29. On November 30, 2006, the Court ordered the Respondent to turn over the accounts receivable to the Chapter 7 trustee. The Respondent did not comply with the Court’s order. “30. On December 1, 2006, however, the Chapter 7 [trustee] withdrew her motion to approve compromise and settlement with debtor. The Chapter 7 [trustee] withdrew her motion because she had received additional information that at the time the bankruptcy was filed, the Respondent had approximately $16,000 in accounts receivable. “31. On February 28, 2007, the United States trustee filed an adversary proceeding a Complaint for Revocation of Discharge. In her complaint, the United States trustee alleged that the Respondent engaged in conduct involving fraud and dishonesty. Specifically, the United States trustee asserted: ‘22. [The Respondent] did not disclose the correct amount in his schedules or at his meeting of creditors, ad [sic] when afforded the opportunity to do so, [the Respondent] provided false information to the chapter 7 trustee. ‘23. Further, [the Respondent] has failed to report the receipt of estate property, the payment of the pre-petition accounts receivable, and has failed to deliver the estate property to the trustee.’ “32. On March 30, 2007, the Respondent filed a second amendment to Schedule B. In the second amendment, the Respondent stated that he had $46,285.19 in accounts receivable at the time he filed the Chapter 7 bankruptcy petition. “33. The United States trustee notified the Respondent that he intended to take die Respondent’s deposition regarding the allegations contained in his complaint. Shortly before the deposition was to begin, on September 28, 2007, the Respondent stipulated that his discharge should be revoked. Specifically, the Respondent stipulated to the following: ‘6. The parties agree and respectfully request this Court to enter a permanent order against Debtor revoking his discharge and forever barring and denying his Chapter 7 discharge for those debts incurred up to and including October 14, 2005, including those listed on Schedule F of his petition. The parties agree that said permanent order shall not include any findings of fact and shall not constitute evidence of the accuracy of the allegations contained in the complaint filed by the U.S. trustee.’ "34. On October 1, 2007, the Court accepted the parties stipulation and revoked the Respondent’s discharge in bankruptcy. “35. On January 29, 2008, the Chapter 7 trustee filed a motion to show cause why the Respondent should not be held in contempt of court for failing to comply with the Court’s November 30, 2006, order, directing the Respondent to turn [over all] of the accounts receivable to the Chapter 7 trustee. “36. On January 31, 2008, the Court issued an order to show cause why the Respondent should not be held in contempt and an order for the Respondent and Mr. Standiferd to appear at a hearing. “37. On February 25, 2008, the Respondent wrote to his attorney regarding the outstanding accounts receivable. According to the Respondent’s calculations, he continued to owe the Chapter 7 trustee $5,000.50 in outstanding accounts receivable. The Respondent paid $1,000 that day. “38. On May 13, 2008, the Court entered an order dismissing the Chapter 7 trustee’s motion to show cause because the Respondent and the Chapter 7 trustee had resolved tire issue regarding the outstanding accounts receivable. “CONCLUSIONS OF LAW “1. Prior to the hearing, in his Answer, the Respondent admitted that he violated KRPC 1.15 widr regard to his handling of Mr. Bailey’s financial affairs. The Respondent denied, however, that he violated KRPC 8.4 in connection with his representation of Mr. Bailey. The Respondent further denied that he violated any rules in connection with his bankruptcy case. “2. Based upon the Respondent’s Answer as well as the findings of fact included above, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.15, KRPC 3.3, and KRPC 8.4, as detailed below. “3. Lawyers must safeguard clients’ property. KRPC 1.15 provides the requirements in this regard. The Respondent violated KRPC 1.15 in three separate and distinct ways. “4. First, the Respondent violated KRPC 1.15(a). That section provides: ‘(a) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in a separate account maintained in the state of Kansas. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.’ Thus, the Respondent violated KRPC 1.15(a) when he commingled his funds with Mr. Bailey’s funds. “5. Next, die Respondent violated KRPC 1.15(d)(1). KRPC 1.15(d)(1) provides: ‘(d) Preserving identity of funds and property of a client. (1) All funds of clients paid to a lawyer or law firm, including advances for costs and expenses, shall be deposited in one or more identifiable accounts maintained in the State of Kansas with a federal or state chartered or licensed financial institution and insured by an agency of the federal or state government, and no funds belonging to the lawyer or law firm shah be deposited therein except as follows:’ The Respondent violated KRPC 1.15(d)(1) when he failed to deposit Mr. Bailey s funds in the Respondent’s trust account or in a separate account for Mr. Bailey. “6. Finally, the Respondent violated KRPC 1.15(d) (2) (iii). KRPC 1.15(d)(2)(ill) provides as follows: ‘(d) Preserving identity of funds and property of a client. (2) The lawyer shall: (iii) Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accountings to the client regarding them.’ Clearly, the Respondent violated KRPC 1.15(d)(2)(iii) when he failed to maintain complete records of his trust account and specifically, complete records of Mr. Bailey’s funds. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.15(a), KRPC 1.15(d)(1), and KRPC 1.15(d)(2)(iii). “7. KRPC 3.3(a)(1) provides that ‘[a] lawyer shall not knowingly make a false statement of material fact or law to a tribunal.’ The Respondent filed a document with the United States Bankruptcy Court with a false statement the statement that he did not have any accounts receivable at the time he filed for the protection of Chapter 7 of the United States Bankruptcy Code. As it turns out, the Respondent had more than $46,000 in accounts receivable at that time. The Respondent should have either done the work necessary to determine his accounts receivable prior to filing or made note on the petition that he had accounts receivable in an unknown amount, and then, provided the precise figure at the time of the first meeting of creditors. The Respondent made a second false statement of material fact to a court when in his amendment he stated that he had $10,228 in accounts receivable. Because the Respondent provided false information to the District Court, the Hearing Panel concludes that the Respondent violated KRPC 3.3(a)(1). “8. ‘It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.’ KRPC 8.4(c). The Respondent engaged in conduct that involved dishonesty when he provided false information to the United States Bankruptcy Court regarding his accounts receivable. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(c). “AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS “In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors. “Duty Violated. The Respondent violated his duty to his client to properly safeguard his property. Additionally, the Respondent violated his duty to the legal profession and the public to maintain his personal integrity. “Mental State. The Respondent should have known that he was violating his duty to his client. The Respondent negligently violated his duty to the legal profession and the public. “Injury. As a result of the Respondent’s misconduct, tire Respondent caused serious actual injury. “Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factor present: “Prior Disciplinary Offenses. “A Pattern of Misconduct. The Respondent engaged in a pattern of misconduct with regard to both instances of misconduct. First, regarding dre handling of Mr. Bailey’s financial affairs, the Respondent engaged in a pattern of mismanagement, poor record keeping, and commingling of funds. The Respondent’s records were so incomplete and inaccurate, that he had no way of knowing how much money he held in behalf of Mr. Bailey. “Next, the Respondent was given several opportunities to inform the bankruptcy court and Chapter 7 trustee the amount of his accounts receivable. First, the Respondent could have informed the bankruptcy court of his accounts receivable at the time he filed the petition. Second, the Respondent could have informed the Chapter 7 trustee of the amount of the accounts receivable during the first meeting of creditors. Next, the Chapter 7 trustee asked that the Respondent provide that information within 25 days of the first meeting of creditors. The Respondent failed to do so. On March 13, 2006, the Respondent amended his schedules and included a statement that his accounts receivable totaled $10,228. However, that figure was not accurate. Later, the Chapter 7 trustee received information that the Respondent’s accounts receivable totaled approximately $16,000. It was not until March 30, 2007, that the Respondent completed a thorough review of outstanding accounts receivable and filed what he claims to be an accurate total of accounts receivable pending at the time he filed his bankruptcy petition. Accordingly, the Hearing Panel concludes that the Respondent engaged in a pattern of misconduct. “Multiple Offenses. The Respondent violated KRPC 1.15(a), KRPC 1.15(d)(1), KRPC 1.15(d)(2)(iii), KRPC 3.3(a)(1), and KRPC 8.4(c). As such, the Respondent committed multiple offenses. “Vulnerability of Victim. The Respondent held Power of Attorney to conduct Mr. Bailey’s business. Much of the time that the Respondent represented Mr. Bailey and was handling his financial affairs, Mr. Bailey was incarcerated. The Respondent never provided Mr. Bailey with an accounting of the funds received and paid out in his behalf. Clearly, Mr. Bailey was vulnerable to the Respondent’s misconduct. “Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommen dation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present: “The Present and Past Attitude of the Attorney as Shown by His or Her Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the Transgressions. The Respondent generally cooperated during the hearing process. However, during the investigative process, the Respondent did not timely provide Mr. Straub with requested information. Additionally, during the hearing, the Respondent did not accept full responsibility for the misconduct. At times during the hearing, the Respondent blamed his assistant, Mr. Standiferd, and Ms. Hamilton for his misconduct. “Inexperience in the Practice of Law. The Respondent was admitted to the practice of law in 2000. The Respondent had less than four years of experience when the misconduct commenced. “Previous Good Character and Reputation in the Community Including Any Letters from Clients, Friends and Lawyers in Support of the Character and General Reputation of the Attorney. The Respondent enjoys the respect of attorneys, friends, employees, and acquaintances as evidenced by the many letters received as Respondent’s Exhibit A. “In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards: ‘4.12 Suspension is generally appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client. ‘6.13 Reprimand is generally appropriate when a lawyer is negligent either in determining whether statements or documents are false or in taking remedial action when material information is being withheld, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding.’ “RECOMMENDATION “The Disciplinary Administrator recommended that the Respondent be indefinitely suspended. The Respondent recommended that he be censured and that the censure be published. “Based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be suspended from the practice of law for a period of 3 months. The Hearing Panel further recommends that prior to being reinstated to the practice of law, the Respondent shall locate Mr. Bailey’s legal heirs and return the $5,143.33, owed to Mr. Bailey. Finally, die Hearing Panel recommends that prior to being reinstated to the practice of law, the Respondent shall locate an attorney to supervise his practice. The supervising attorney must be first approved by the Disciplinary Administrator. The supervising attorney will work with the Respondent for one year on law office practice management, client engagements, trust accounts, and financial record-keeping. “Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.” Discussion In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (citing In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]); see Supreme Court Rule 211(f) (2009 Kan. Ct. R. Annot. 321). The respondent filed no exceptions to the panel’s final hearing report. Thus, the hearing panel’s final report is deemed admitted. Supreme Court Rule 212(c) (2009 Kan. Ct. R. Annot. 337). Upon our review of the entire record we conclude that the panel’s findings of fact are supported by clear and convincing evidence and support the panel’s conclusions of law. We therefore adopt those findings and conclusions. With respect to the discipline to be imposed, the panel’s recommendation is advisory only and shall not prevent the court from imposing a different discipline. In re Cline, 289 Kan. 834, 217 P.3d 455 (2009); Supreme Court Rule 212(f) (2009 Kan. Ct. R. Annot. 337). Before oral argument, the respondent submitted additional information to the court, including his own affidavit and an affidavit from Michael E. Francis, the attorney he selected to monitor his practice of law. We have considered this additional information in arriving at our decision in this case. During oral argument, the respondent did not seek to avoid responsibility for the admitted violations of the Supreme Court Rules for attorney discipline. Instead, the respondent concentrated his oral argument on the additional evidence submitted relating to the respondent’s efforts to bring his practice into full compliance with the rules of professional conduct and, in light of the panel’s recommendation for suspension, to prepare his practice for that possibility, including notifying the judges of the criminal division of the Third Judicial District of that possibility. The respondent offered his sincere apology for the harm caused to the court, his clients, and the profession. He stated that he has addressed the problems causing his misconduct and that he continues to practice law under strict attorney monitoring without incident. We recognize the effort the respondent has made to remedy the actions giving rise to the misconduct in this case. We acknowledge the progress the respondent has made to insure the proper handling of client funds and further to insure appropriate record-keeping for those funds. Finally, we note that, as of the hearing on this matter, funds belonging to the estate of Larry Bailey were still being held in an interest-bearing account pending distribution to his recently located heirs. We must observe, however, that the respondent’s actions constitute serious violations of the KRPC. The respondent made false statements of material fact to the United States Bankruptcy Court and engaged in dishonesty, deceit, and misrepresentation when he provided false information on more than one occasion to that same court regarding his accounts receivable. Based upon the clear and convincing evidence of record, we conclude that a suspension of 3 months is not an appropriate sanction under the circumstances of this case. The more appropriate sanction in this case is a 3-year suspension from the practice of law in the state of Kansas. Nevertheless, we acknowledge the efforts of the respondent and give full consideration to the entire record before this court, including the additional exhibits submitted to this court and discussed during oral arguments. Thus, if the respondent submits a motion to this court after the first year of his suspension for reinstatement subject to a probationary plan, we would entertain that motion subject to the following conditions set forth below. Before submitting any motion to this court, the respondent must present to the Disciplinary Administrator a plan of probation, addressing his then-present circumstances, as well as a proposed plan of practice as a Kansas attorney, addressing those factors discussed in his affidavit to this court that remain applicable, including evidence of ongoing treatment with his therapist along with a current assessment of his condition from a clinician, and evidence of distribution of the funds belonging to Larry Bailey’s estate to Bailey’s heirs. If tire Disciplinary Administrator approves the probationary plan submitted by the respondent, that approval shall be attached to the respondent’s motion to suspend the remaining 2 years of his suspension. If his probationary plan is not approved by the Disciplinary Administrator, the respondent may file his motion without such approval. This court will then consider the respondent’s motion to suspend the balance of his suspension. If the court approves the probation plan, the court will suspend the remaining 2 years of the respondent’s suspension and place the respondent on probation for a period of 2 years subject to conditions contained in such order. If the court denies the respondent’s motion, the respondent shall complete the term of his 3-year suspension from practicing law in the state of Kansas. Conclusion and Discipline It Is Therefore Ordered that Kevin Peter Shepherd be suspended from the practice of law in the state of Kansas for a period of 3 years, effective the date of this opinion in accordance with Supreme Court Rule 203(a)(2) (2009 Kan. Ct. R. Annot. 272). It Is Further Ordered that after a period of 1 year, the respondent may apply by motion to this court for a suspension of the remaining 2 years of his 3-year suspension under the provisions set forth in this opinion. If such application is approved, additional orders will be entered by this court. If the application is not approved, the respondent shall complete the term of his 3-year suspension. It Is Further Ordered that the respondent shall comply with Supreme Court Rule 218 (2009 Kan. Ct. R. Annot. 361), and in the event the respondent would seek reinstatement, he shall comply with Supreme Court Rule 219 (2009 Kan. Ct. R. Annot. 376). It Is Further Ordered that this opinion be published in the official Kansas Reports and that the costs herein be assessed to the respondent. Rosen and Johnson, JJ., not participating. Caplinger and Fairchild, JJ., assigned.	[ -108, -24, -99, 93, 8, -31, 56, 58, 83, -5, -25, 87, -19, -18, 1, 107, -62, 109, -44, 107, -57, -73, 123, -64, 102, -5, -7, -59, -70, 79, -28, -99, 73, 48, -118, 69, 6, -62, -43, -36, -118, 3, -119, -16, -37, -63, -96, -23, 19, 11, 53, 76, -78, 44, 29, 107, 9, 44, 63, -83, -48, -111, -45, 21, 127, 22, -93, -121, -100, 15, -44, 47, -104, 56, 33, -24, -13, -74, -118, 100, 79, -87, -87, 102, 98, 33, -103, -83, -92, -116, 63, -77, 15, -25, -101, 121, 99, 8, -106, -100, 117, 118, 43, -4, -31, 28, 25, 104, -117, -22, -108, -109, -97, 101, -52, -102, -17, -124, 16, 65, -124, -26, 95, 87, 112, 27, -70, -75 ]
Per Curiam: This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against James A. Cline, of Wichita, an attorney admitted to tire practice of law in Kansas in 1990. On January 14,2009, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). On January 23, 2009, the respondent filed an answer to the formal complaint and a proposed probation and supervision plan. On March 2,2009, the Disciplinary Administrator and the respondent, represented by counsel, entered into a joint stipulation regarding the rule violations. A hearing was held before a panel of the Kansas Board for Discipline of Attorneys, where the respondent appeared in person and was represented by counsel. The hearing panel determined that the respondent violated KRPC 1.1 (2008 Kan. Ct. R. Annot. 400) (competence), KRPC 1.2 (2006 Kan. Ct. R. Annot. 367) (scope of representation), KRPC 1.3 (2008 Kan. Ct. R. Annot. 415) (diligence), KRPC 1.4(a) (2008 Kan. Ct. R. Annot. 432) (communication), KRPC 1.8(e) (2008 Kan. Ct. R. Annot. 469) (providing financial assistance to client), KRPC 1.8(h)(2) (settling potential claim), KRPC 1.16(d) (2008 Kan. Ct. R. Annot. 508) (terminating representation), KRPC 5.3 (2008 Kan. Ct. R. Annot. 561) (responsibilities regarding nonlawyer assistants), KRPC 8.3(a) (2008 Kan. Ct. R. Annot. 585) (reporting professional misconduct), and KRPC 8.4(c) (2008 Kan. Ct. R. Annot. 586) (conduct involving dishonesty, fraud, deceit, or misrepresentation). Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court: “FINDINGS OF FACT “2. During the relevant rime periods, the Respondent was employed as a lawyer in the law firm, the Accident Recovery Team, P.A., in Wichita, Kansas. Jeff T. Tevis is the sole proprietor of the firm and the Respondent was an employee of the firm. “Representation of Richard Stephens “3. On February 11, 2005, Richard Stephens underwent a liver biopsy at St. Francis Hospital in Wichita, Kansas. Although the surgery was supposed to be routine, there were adverse consequences of surgery. During the four months that followed the surgery, Mr. Stephens spent 51 days in the hospital and incurred medical bills in an amount close to $2,000,000.00. Mr. Stephens believed that his problems resulted from medical malpractice. “4. On March 2, 2005, the Respondent met with Mr. Stephens at Mr. Stephen’s home. The Respondent agreed to represent Mr. Stephens in the medical malpractice case. The Respondent told Mr. Stephens that there was a two year statute of limitations. At that time, Mr. Stephens signed a fee agreement, titled ‘Personal Injury Agreement.’ However, the Respondent neither signed nor dated the agreement. “5. After Mr. Stephens retained the Respondent, the Respondent misplaced Mr. Stephens’ file. Because the file had been misplaced, the firm’s paralegals did not docket and calendar dates and obtain medical records. “6. On May 17, 2005, Debbie, Mr. Stephens’ girlfriend, left some of Mr. Stephens’ medical bills at the firm for the Respondent. “7. During the two years after Mr. Stephens retained the Respondent, Mr. Stephens called the Respondent on 26 separate occasions. The Respondent returned very few of these telephone calls. The Respondent did not properly communicate with Mr. Stephens. “8. Also, during the two years after Mr. Stephens retained the Respondent, the Respondent met with Mr. Stephens in his home on approximately five occasions. During one of the meetings at Mr. Stephens’ home, the Respondent told Mr. Stephens that the case was ‘in the system.’ However, the Respondent had not filed the suit and the case was not ‘in the system.’ “9. During the course of the representation, Mr. Stephens made a number of requests for copies of documents showing what was going on in the case. The Respondent did not provide the documentation requested. “10. The Respondent falsely told Mr. Stephens that the case was ‘filed’ or ‘set for court.’ The Respondent falsely told Mr. Stephens that he filed suit in his behalf against the St. Francis Hospital. Later, the Respondent falsely told Mr. Stephens ‘don’t worry, well take care of you,’ ‘you’re good,’ ‘we’re going to do the screening panel,’ and ‘you’re okay.’ “11. In February, 2007, the statute of limitations expired. The Respondent failed to preserve Mr. Stephens’ claim by filing suit. “12. In March, 2007, the Respondent met with Mr. Stephens regarding settlement of the case. At that time, Mr. Stephens was in financial straits. Mr. Stephens told the Respondent that he wanted $40,000.00 free of any hens to settle the case. “13. On two separate occasions, the Respondent gave money to Mr. Stephens, in the amounts of $250.00 and $350.00, because Mr. Stephens needed money. “14. In May, 2007, the Respondent went to Mr. Stephen’s house and falsely told Mr. Stephens that St. Francis wanted to settle the case for $32,000.00. Mr. Stephens rejected this offer. The Respondent assured Mr. Stephens that he would try to get another offer. By this time, the Respondent knew that he had missed the statute of limitations. “15. In May or June, 2007, Mr. Stephens began to distrust the Respondent. Mr. Stephens contacted Travis Burk, an attorney in Wichita, Kansas. Mr. Burk and his partner, Gary Patterson, came to Mr. Stephens’ home. Mr. Burk and Mr. Patterson told Mr. Stephens that there was the potential for a lawsuit against the Respondent arising out of the Respondent’s representation of Mr. Stephens in the medical malpractice case. “16. In early July, 2007, Mr. Burk called the Respondent regarding Mr. Stephens’ case. The Respondent falsely assured Mr. Burk that he had filed the case and was in the process of negotiating a setdement with defense counsel. The Respondent also falsely told Mr. Burk that a request for a screening panel had been filed. “17. On July 10, 2007, Mr. Burk sent a letter to Mr. Stephens relating what the Respondent had told Mr. Burk. Mr. Burk sent a copy of the letter to the Respondent. “18. On July 20, 2007, the Respondent again went to Mr. Stephens’ home. The Respondent told Mr. Stephens that he had lied to him and that he had not filed a lawsuit in his behalf against St. Francis. The Respondent asked Mr. Stephens not to talk to anyone at the Accident Recovery Team about the case. “19. On July 22, 2007, Mr. Stephens and his father, James G. Stephens, went to the Respondent’s office and met with the Respondent. At that meeting, the Respondent told Mr. Stephens and Mr. Stephens’ father that he had missed the statute of limitations. The Respondent asked Mr. Stephens’ father what it would take to ‘fix the problem.’ “20. James G. Stephens told the Respondent that if Mr. Stephens received $100,000.00 that they would not hire another attorney to pursue a claim against the Respondent. The Respondent agreed to pay Mr. Stephens $100,000.00. “21. On July 23, 2007, Mr. Stephens and his father again went to the Respondent’s office. The Respondent presented Mr. Stephens and his father with a release and settlement agreement. The Respondent did not advise Mr. Stephens in writing of the desirability of seeking counsel and give him a reasonable opportunity to seek the advice of independent counsel regarding the release and settlement agreement. Additionally, according to Mr. Stephens, he was on medication that day and could not read the agreement. The release and settlement agreement was signed by Mr. Stephens, his father, and the Respondent. That day, the Respondent gave Mr. Stephens a $30,000.00 cashier’s check. Thereafter, on August 6, 2007, the Respondent paid Mr. Stephens an additional $69,400.00, as the Respondent had previously paid Mr. Stephens $600.00. “22. The release and settlement agreement, drafted by the Respondent, contains the following language, which includes a false statement. T have consulted with an independent attorney who has no working relationship with the Accident Recovery Team, P.A., Jeff T. Tevis or James A. Cline. Travis Burk, Attorney at Law, has spoken with me at length about all these matters. After speaking with Mr. Burk, I have elected to sign this agreement with full knowledge of the consequences and ramifications. I feel this agreement is in my best interests and all matters between myself and the Accident Recovery Team, P.A., Jeff T. Tevis, James A. Cline, R. Todd King, Sean C. Brennan or Gary K. Albin are hereby resolved and no further actions will be taken on my part.’ Mr. Stephens had not spoken to Mr. Burk regarding the release and settlement agreement. “23. The release and settlement agreement requires that the agreement remain confidential and contains a bar and release of all claims which are defined to include, among other things, ‘complaints and grievances.’ “24. On November 28,2007, Mr. Patterson sent a letter to Mr. Tevis advising him that Mr. Patterson believed that the Respondent had violated the Kansas Rules of Professional Conduct and had a duty to report the misconduct to the Disciplinary Administrator’s office. Mr. Patterson advised Mr. Tevis that if the Respondent did not self-report the misconduct, Mr. Patterson would file a complaint. Neither the Respondent nor Mr. Tevis reported the misconduct to the Disciplinary Administrator’s office. - “25. On January 22, 2008, Mr. Patterson filed a complaint against the Respondent with the Disciplinary Administrator’s office. “26. On March 3, 2008, the Respondent provided a written response to Mr. Patterson’s initial complaint. The Respondent included a copy of the release and settlement agreement signed by Mr. Stephens, his father, and the Respondent. The Respondent falsely stated the following in his letter to the attorney assigned to investigate Mr. Patterson’s complaint. ‘As you can see, Mr. Stephens consulted with an attorney regarding this matter. In order to ensure he had adequate representation, I also requested that his father, a retired businessman, also participate in the discussions.’ The Respondent knew that Mr. Stephens had not consulted with an attorney regarding the release and settlement agreement. “Representation of Frank Garda “27. On January 3, 2001, Frank Garcia experienced chest pains. He went to the Garden City Medical Clinic on that date, was treated primarily by a nurse, and was sent home. The next day, at work, he suffered a heart attack and died. He was survived by his wife and children. “28. On January 23, 2001, the Garcias contacted] the Accident Recovery Team and spoke with Jeff Tevis. Mr. Tevis completed an intake sheet for the worker’s compensation matter and assigned the Respondent as the primary lawyer on the case. “29. Frank Garcia, Jr., Special Administrator of his father’s estate, believed that the Respondent agreed to handle the medical malpractice case, as well as the worker’s compensation case. “30. On January 25, 2001, Mr. Tevis gave the Respondent a handwritten note asking to whom the firm should refer the medical malpractice case. On that note, the Respondent wrote the names, ‘Andy Hutton, Mark Hutton and Brad Prochaska.’ “31. The Respondent instructed his paralegal to draft a letter to the Garcias telling them that the Accident Recovery Team did not handle malpractice cases and suggesting that they contact Andy Hutton, Mark Hutton, or Brad Prochaska. The Respondent did not mention the statute of limitations in the letter. “32. While the Respondent believes that the letter was sent, Frank Garcia, Jr. indicated that he never received the letter. “33. The Respondent told the investigator that he believed that he told Frank Garcia, Jr., that he was not going to handle the medical malpractice case. Frank Garcia, Jr., indicated that the Respondent never told him that he would not handle the medical malpractice case. Frank Garcia, Jr. believed that the Respondent and his firm were handling the medical malpractice case. “34. The Accident Recovery Team and the Respondent had paralegals collect medical documents for the Garcia representation, but did little else. The Garcia children called numerous times, but few calls were returned. “35. On November 5, 2002, Peggy Keene, a paralegal in the office, took a message from Ed Garcia. The message read, “Wants to know who you referred case to!’ Neither the Respondent nor anyone else in the firm returned the phone call. “36. The phone records show that neither the Respondent nor anyone else in the firm was in contact with the Garcias in November, 2002, December, 2002, or January, 2003. The records show that only three telephone calls were returned to the Garcias from January, 2001, until January, 2003. “37. On January 4, 2003, the statute of limitations to file the medical malpractice suit expired. Neither the Respondent nor anyone else filed suit in behalf of the Garcias prior to the expiration of the statute of limitations. “38. Jerry Levy filed a legal malpractice suit against the Respondent regarding his representation of the Garcias. Eventually, the Respondent’s malpractice carrier settled the Garcias’ claim for $100,000.00. “Representation of Carey Irvin “39. Carey Irvin had a spinal operation for a herniated disc on August 12, 2003. The procedure was performed at the South Central Kansas Regional Medical Center (hereinafter ‘SCKRMC’) and involved several doctors. “40. After the operation, he experienced problems with pain and was readmitted to the hospital on August 27, 2003. Mr. Irvin died on August 28, 2003, as a result of septicemia and an infected spinal surgery wound. “41. On May 5, 2005, the Respondent met with Shirley Goulden, Mr. Irvin’s representative. Ms. Goulden retained the Respondent to represent Mr. Irvin’s estate in a medical malpractice case. During the May 5, 2005, meeting, the Respondent completed a medical malpractice questionnaire. “42. Following May 5, 2005, the Respondent and the Accident Recovery Team conducted little or no investigation other than to collect a few medical records. “43. On August 25, 2005, two days before the statute of hmitations expired, the Respondent filed suit against SCKRMC and the Ark City Clinic, P.A. The Respondent did not name any doctors in the suit because he had reached the conclusion that the doctors had not committed malpractice. The Respondent did not discuss his decision to not name any doctors in the suit with Ms. Goulden. “44. The Respondent learned that SCKRMC was owned by the Ciiy of Arkansas City and that notice, pursuant to K.S.A. 12-105(b) was required. On August 26, 2005, the Respondent sent the required statutory notice. However, SCKRMC did not receive the statutory notice until August 29, 2005, after the expiration of the statute of hmitations. “45. K.S.A. 40-3403(h) and K.S.A. 65-442 limit the vicarious liability of a hospital for the actions of any other health care provider. The Respondent’s failure to name the physicians as defendants in the lawsuit precluded any cause of action against the physicians direcdy and against the hospital via vicarious liability. “46. Without consulting Ms. Goulden, on March 21, 2006, the Respondent dismissed the suit without prejudice. On May 3, 2006, the Respondent finally notified Ms. Goulden that he had dismissed the suit. The Respondent advised Ms. Goulden that she had six months, under the savings statute, to refile the case. The Respondent informed Ms. Goulden that he was withdrawing from the representation because it was not ‘economically feasible to pursue’ the case. “47. During the year that the Respondent represented Mr. Irvin’s estate, the Respondent failed to locate an expert witness or engage in any discovery. “48. Mr. Levy also filed a legal malpractice case against the Respondent in relation to the Respondent’s representation of Mr. Irvin’s estate. On October 2, 2007, the legal malpractice case was settled and the Respondent’s malpractice carrier agreed to pay $60,000.00 to Mr. Irvin’s estate. “Representation of Herman Temes “49. On March 5, 2004, Herman Temes underwent heart surgery by Joseph Galichia at the Galichia Heart Hospital (hereinafter “GHH”). During Mr. Temes’ surgery, while Dr. Galichia was inserting a stint, an artery was tom. Additionally Mr. Temes also had possible kidney injuries due to surgery dye. “50. On February 9,2005, Mr. Temes contacted the Accident Recovery Team and met with the Respondent. The Respondent completed a medical malpractice questionnaire with Mr. Temes. “51. Thereafter, Mr. Temes had difficulty in obtaining medical records from GHH. An employee at GHH told the Respondent that Mr. Temes’ records were lost. “52. Later, the Respondent attempted to refer Mr. Temes’ case to Mr. Prochaska. However, Mr. Prochaslca declined to accept the representation. “53. On March 4, 2006, one day before the expiration of the statute of limitations, the Respondent filed suit in behalf of Mr. Temes against Dr. Galichia and the Galichia Medical Group, P.A. However, the Respondent delegated the responsibility of obtaining service on Dr. Galichia to a paralegal. The paralegal failed to achieve proper service on Dr. Galichia. “54. In late 2007, Mr. Tevis ordered the Respondent to get rid of all his medical malpractice cases. The Respondent met with Mr. Temes and told him he would no longer handle die medical malpractice case. “55. On Januaiy 2, 2007, the Respondent filed a journal entiy of dismissal without prejudice. “56. During the time the Respondent represented Mr. Temes, he failed to obtain an expert witness or engage in any discovery. “57. Mr. Levy has filed a legal malpractice case against the Respondent regarding his representation of Mr. Temes. Mr. Levy is also pursuing the medical malpractice case. The suits remain pending. “CONCLUSIONS OF LAW “1. Prior to the hearing on die Formal Complaint, die Disciplinary Administrator, the Respondent, and counsel for the Respondent entered into a Stipulation regarding the rule violations in this case. The Respondent stipulated that he violated KRPC 1.1, KRPC 1.2, KRPC 1.3, KRPC 1.4, KRPC 1.8, KRPC 1.16, KRPC 5.3, KRPC 8.3, and KRPC 8.4. Accordingly, based on die Respondent’s stipulation and the evidence presented to the Hearing Panel, the Hearing Panel concludes that clear and convincing evidence exists that the Respondent violated KRPC 1.1, KRPC 1.2, KRPC 1.3, KRPC 1.4, KRPC 1.8, KRPC 1.16, KRPC 5.3, KRPC 8.3, and KRPC 8.4, as detailed below. “2. Lawyers must provide competent representation to their clients. KRPC 1.1. ‘Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.’ The Respondent violated KRPC 1.1 in a number of ways. First, the Respondent violated KRPC 1.1 when he failed to advise Frank Garcia, Jr. of the applicable statute of limitations in the personal injury case. Next, the Respondent failed to provide competent representation to Mr. Irvin’s estate when he failed to name tire doctors involved in the treatment of Mr. Irvin as defendants in die law suit. Further, the Respondent violated KRPC 1.1 when he failed to obtain an expert witness or engage in any discovery during the time he represented the estate of Mr. Irvin and when he represented Mr. Temes. Finally, the Respondent failed to competently represent Mr. Irvin’s estate when he conducted little or no investigation into the medical malpractice claim. Accordingly, the Hearing Panel concludes that the Respondent repeatedly violated KRPC 1.1. “3. KRPC 1.2 [2006 Kan. Ct. R. Annot. 367] provides: ‘(a) A lawyer shall abide by a client’s decisions concerning the lawful objectives of representation, subject to paragraphs (c), (d), and (e), and shall consult with the client as to the means which the lawyer shall choose to pursue. A lawyer shall abide by a client’s decision whether to accept an offer of settlement of a matter. ‘(c) A lawyer may limit the objectives of the representation if the client consents after consultation.’ The Respondent failed to act properly within the scope of his representation when he failed to name the doctors involved in the treatment of Mr. Irvin as defendants without first discussing this with Ms. Goulden, the representative of Mr. Irvin’s estate. Additionally, the Respondent violated KRPC 1.2 when he dismissed the Irvin law suit without prejudice without consulting with Ms. Goulden. As such, the Hearing Panel concludes that the Respondent violated KRPC 1.2. “4. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The Respondent failed to diligently and promptly represent his client in the Irvin case. Specifically, the Respondent waited until two days before the statute of limitations expired on the Irvin claim to file suit against the South Central Regional Medical Center. Additionally, the Respondent never properly obtained service upon Joseph Galichia. Because the Respondent failed to act with reasonable diligence and promptness in representing his cfient(s), the Hearing Panel concludes that the Respondent violated KRPC 1.3. “5. KRPC 1.4(a) provides that ‘[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.’ In this case, the Respondent violated KRPC 1.4(a) when he failed to properly communicate with Mr. Stephens and the Garcias. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a). “6. Lawyers are prohibited from engaging in certain conduct with regard to current clients. KRPC 1.8 sets forth specific activities that a lawyer may not engage in with current clients. The Respondent violated two separate provisions of KRPC 1.8, subsection (e) and subsection (h)(2). “7. KRPC 1.8(e) provides: ‘(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.’ The Respondent violated KRPC 1.8 when he provided financial assistance to Mr. Stephens in connection with the litigation on at least two occasions. As such, the Hearing Panel concludes that the Respondent violated KRPC 1.8(e). “8. KRPC 1.8(h)(2) prohibits attorneys from settling a potential claim for liability unless ‘that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith.’ Here, the Respondent settled a claim regarding his liability with Mr. Stephens who was not represented by counsel without first advising Mr. Stephens in writing of the desirability of seeking counsel and without first giving Mr. Stephens a reasonable opportunity to seek tire advice of independent counsel. Therefore, the Hearing Panel concludes that the Respondent violated KRPC 1.8(h)(2). “9. KRPC 1.16 requires lawyers to take certain steps to protect clients after the representation has been terminated. Specifically, KRPC 1.16(d) provides: ‘Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.’ The Respondent violated KRPC 1.16(d) when he failed to preserve the suit filed in behalf of Mr. Irvin’s estate and when he dismissed Mr. Temes’ case without properly protecting Mr. Temes’ interests. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.16(d). “10. Lawyers must supervise their nonlawyer assistants. See KRPC 5.3. In this case the Respondent failed to do so by failing to malee reasonable efforts to ensure that the paralegals competently and timely handled Mr. Stephens’ medical malpractice case. Additionally, the Respondent failed to properly supervise the non-lawyer assistants in his office with respect to a paralegal’s attempts to obtain proper service in Mr. Temes’ suit. As such, the Hearing Panel concludes that the Respondent violated KRPC 5.3. “11. KRPC 8.3(a) provides that ‘[a] lawyer having knowledge of any action, inaction, or conduct which in his or her opinion constitutes misconduct of an attorney under these rules shall inform the appropriate professional authority.’ In this case, the Respondent knew that he had repeatedly violated the Kansas Rules of Professional Conduct in his representation of Mr. Stephens. Mr. Patterson and Mr. Burk directed correspondence to the Respondent’s supervisor, Mr. Tevis, which provided Mr. Tevis and the Respondent an opportunity to report the misconduct. Mr. Tevis and the Respondent ignored Mr. Patterson and Mr. Burk’s letter. Because the Respondent failed to self-report his conduct, the Hearing Panel concludes that the Respondent violated KRPC 8.3(a). “12. ‘It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.’ KRPC 8.4(c). The Respondent engaged in a pattern of dishonest conduct when he repeatedly provided false information to Mr. Stephens regarding the status of the representation. Additionally, the Respondent engaged in dishonest conduct when he told Mr. Burk that a medical malpractice case had been filed, that the Respondent was negotiating a settlement with defense counsel, and that a screening panel had been filed. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(c). “AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS “In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors. “Duty Violated. The Respondent violated his duty to his clients to provide competent and diligent representation and adequate communication. The Respondent violated his duly to the public to maintain his personal integrity. “Mental State. The Respondent knowingly violated his duties. “Injury. As a result of the Respondent’s misconduct, the Respondent caused actual serious injury to his clients. “Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present: “Prior Disciplinary Offenses. On April 1, 2008, the Respondent entered into the Attorney Diversion Program. In the agreement, the Respondent acknowledged that he violated KRPC 1.2, KRPC 1.7, and KRPC 1.16. The Respondent successfully completed the terms and conditions of the agreement and the case was dismissed. Pursuant to Kan. Sup. Ct. R. 203(d), prior participation in the Attorney Diversion Program constitutes prior discipline. “Dishonest or Selfish Motive. The Respondent’s misconduct regarding Mr. Stephens was motivated by dishonesty. The Respondent’s misconduct associated with Mr. Stephens is quite serious. “A Pattern of Misconduct. The Respondent engaged in a pattern of misconduct. Four clients were injured by the Respondent’s misconduct. Additionally, the misconduct detailed in the diversion agreement is of similar nature. “Multiple Offenses. The Respondent violated KRPC 1.1, KRPC 1.2, KRPC 1.3, KRPC 1.4, KRPC 1.8, KRPC 1.16, KRPC 5.3, KRPC 8.3, and KRPC 8.4. As such, the Hearing Panel concludes that the Respondent’s misconduct constitutes multiple offenses. “Substantial Experience in the Practice of Law. The Respondent was admitted to the practice of law on September 20, 1990. At the time the Respondent’s misconduct began, he had been practicing law for approximately 15 years. The Respondent has substantial experience in the practice of law. “Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present: “The Present and Past Attitude of the Attorney as Shown by His or Her Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the Transgressions. The Respondent fully cooperated in the investigation and prosecution of the disciplinary case. The Respondent fully acknowledged his transgressions. ‘Previous Good Character and Reputation in the Community Including Any Letters from Clients, Friends and Lawyers in Support of the Character and General Reputation of the Attorney. The Respondent is an active and productive member of the Wichita, Kansas, bar. He enjoys the respect of his peers, clients, and community members as detailed in Respondent’s Exhibit A. ‘Remorse. At the hearing on this matter, the Respondent expressed genuine remorse. “In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards: ‘4.42 Suspension is generally appropriate when: (a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or (b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client. ‘4.52 Suspension is generally appropriate when a lawyer engages in an area of practice in which the lawyer knows he or she is not competent, and causes injury or potential injury to a client. ‘4.62 Suspension is generally appropriate when a lawyer knowingly deceives a client, and causes injury or potential injury to the client.’ “RECOMMENDATION “The Disciplinary Administrator recommended that the Respondent be suspended from the practice of law for a period of one year. Additionally, the Disciplinary Administrator recommended that the Respondent be required to undergo a hearing pursuant to Kan. Sup. Ct. R. 219 prior to reinstatement. The Respondent recommended that his plan of probation be adopted and that he be allowed to continue to practice law. “Kan. Sup. Ct. R. 211(g) governs when a Hearing Panel should recommend that a Respondent be placed on probation. That rule provides: ‘(1) If the Respondent intends to request that the Respondent be placed on probation for violating the Kansas Rules of Professional Conduct or the Kansas Supreme Court Rules, the Respondent shall provide each member of the Hearing Panel and the Disciplinary Administrator with a workable, substantial, and detailed plan of probation at least ten days prior to the hearing on the Formal Complaint. The plan of probation must contain adequate safeguards that will protect the public and ensure the Respondent’s full compliance with the disciplinary rules and orders of the Supreme Court. ‘(2) If the Respondent provides each member of the Hearing Panel and the Disciplinary Administrator with a plan of probation, the Respondent shall immediately and prior to the hearing on the Formal Complaint put the plan of probation into effect by complying with each of the terms and conditions of the probation plan. ‘(3) The Hearing Panel shall not recommend that the Respondent be placed on probation unless: (i) the Respondent develops a workable, substantial, and detailed plan of probation and provides a copy of the proposed plan of probation to the Disciplinary Administrator and each member of the Hearing Panel at least ten days prior to the hearing on the Formal Complaint; (ii) the Respondent puts the proposed plan of probation into effect prior to the hearing on the Formal Complaint by complying with each of the terms and conditions of the probation plan; (iii) the misconduct can be corrected by probation; and (iv) placing the Respondent on probation is in the best interests of the legal profession and the citizens of the State of Kansas.’ “While the Respondent has satisfied many of the requirements of Kan. Sup. Ct. R. 211(g)(3), tile Respondent has failed to satisfy two of the requirements. Specifically, the misconduct that the Respondent engaged in cannot be corrected by probation. The Respondent engaged in dishonest misconduct. Engaging in dishonest conduct is a character trait and cannot be monitored by a [supervising attorney]. Further, based on the serious nature of the Respondent’s misconduct, placing the Respondent on probation is not in the best interests of the legal profession and the citizens of the State of Kansas. Accordingly, the Hearing Panel rejects the Respondent’s request for probation. “Based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be suspended from the practice of law for a period of one year. In the opinion of the Hearing Panel, a reinstatement hearing, pursuant to Kan. Sup. Ct. R. 219, is not warranted in this case. “Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.” In a footnote, the hearing panel also made the following observation: “The Hearing Panel recognizes that the Respondent suffers from depression. However, the evidence presented in this case falls short of establishing that the Respondent’s misconduct was, in anyway, caused by his depression. The Hearing Panel accepts that depression may have prevented the Respondent from timely handling his business, but the testimony that depression caused the Respondent to lie to his clients and otherwise mislead them is not believable. The Respondent’s expert admitted that the contention has no support in the standard publication governing mental disorder diagnosis. Accordingly, the Hearing Panel concludes that the Respondent’s depression is not a mitigating factor.” Discussion In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]); see Supreme Court Rule 211(f) (2008 Kan. Ct. R. Annot. 313). The respondent filed no exception to the panel’s final hearing report but reserved his right to argue in mitigation of the recommended discipline before this court. Thus, the hearing panel’s final report is deemed admitted. Supreme Court Rule 212(c) (2008 Kan. Ct. R. Annot. 327). We have reviewed the entire record including the transcript of proceedings before the panel. We conclude the panel’s findings of fact are supported by clear and convincing evidence and support the panel’s conclusions of law. We therefore adopt those findings and conclusions. With respect to the discipline to be imposed, the panel’s recommendation that the respondent be suspended from the practice of law in Kansas for a period of 1 year subject to recommended conditions is advisoiy only and shall not prevent the court from imposing a different discipline. Supreme Court Rule 212(f). Before oral argument, the respondent submitted additional information to the court, including an affidavit from the respondent; a letter from his treating physician regarding his treatment for depression; a letter from his treating therapist, J.D. Moorehead, LSCSW; a letter from David L. Hiebert representing the Wichita Bar Association Lawyers Assistance Committee; and testimony from Mel Gregory of Render Kamas, L.C., the attorney monitoring the respondent’s practice of law consistent with the plan of probation submitted by the respondent prior to the panel hearing. During oral argument the respondent and his counsel did not seek to avoid responsibility for the admitted violations of the Supreme Court Rules for attorney discipline. Instead, the respondent concentrated his oral argument on the additional evidence submitted relating to the respondent’s clinical depression, his treatment for depression, statements from treating physicians, and letters of support from the Wichita Bar Association Lawyers Assistance Committee and members of the bar supporting the respondent in his request to continue in the practice of law in Kansas subject to his submitted probation plan, which the respondent has successfully followed since before his panel hearing. We note that the panel acknowledged that the respondent was suffering from depression but concluded that the respondent’s misconduct was not in any way caused by his depression. Thus, the panel concluded that the respondent’s depression was not a mitigating factor. The respondent’s counsel during oral argument contended that while the respondent’s depression may not have directly caused his dishonest misconduct, the respondent’s depression indirectly contributed to this misconduct. The respondent’s argument before this court acknowledged his wrongdoing, and he gave sincere apologies for the harm caused to the court, the profession, and his family. The respondent persuasively argued that he has addressed the problems causing his misconduct and that he continues to practice law under a strict plan of attorney-monitored probation without incident. Thus, according to the respondent’s argument, allowing him to continue in the practice of law in this state presents no danger to the public or his clients, who are served by a capable and competent attorney, insuring adequate representation. Absent from the discussion during oral argument, however, was the actual nature of the violations occurring in this case. When responding to the question of how to balance the good of the respondent with the actual harm caused by the respondent’s misconduct, the respondent responded by again focusing on the ongoing efforts to continue with his rehabilitation, recognizing that all of his clients are now being capably served. In reviewing the respondent’s actions, we note that he accepted a potential malpractice action on behalf of Stephens, failed to communicate with his client during that representation, falsely told his client that his case had been filed, and attempted to settle the case with the client by falsely representing that a $32,000 offer of settlement had been made. Once this offer was rejected the respondent again lied to an attorney making inquiries on behalf of his client that a malpractice action had been filed, negotiations for settlement were underway and that the respondent had requested a screening panel. The respondent failed to take any action to toll the statute of limitations. He finally admitted to his client that .he failed to file suit in time and offered his client $100,000 to settle his malpractice. His client accepted, and this amount has been paid. In the settlement agreement, the respondent falsely represented that his client sought and obtained independent legal advice. The respondent again lied in a letter to the investigator appointed by the Disciplinary Administer, stating: “As you can see, Mr. Stephens consulted with an attorney regarding this matter [settlement]. In order to ensure he had adequate representation, I also requested that his father, a retired businessman, also participate in the discussions.” Garcia, Irvin, and Temes similarly lost any opportunity to have their cases handled by competent counsel in the manner provided for in our civil justice system. With the aid of another attorney, some recovery through the respondent’s malpractice insurance has been obtained for Garcia and Irvin. Recovery may also be obtained through the same means for Temes. With all the cases mishandled by the respondent, it is difficult to determine what may have resulted if those clients would have received adequate representation or to what extent those clients would have been compensated for their injuries. We recognize the effort the respondent has made to prevent any of the serious misconduct exhibited in these cases to occur any time in the future. We observe, however, that the respondent’s actions are serious violations causing real harm to his clients. We conclude that a suspension of 1 year is not an appropriate sanction under all the circumstances of this case. The more appropriate sanction in this case is a 3-year suspension from the practice of law in the state of Kansas. Nevertheless, we acknowledge the efforts of the respondent and give full consideration to the entire record before this court, including the additional exhibits submitted to this court and discussed during the oral arguments. Thus, if the respondent submits a motion to this court after the first year of his suspension has passed requesting reinstatement of his probationary plan, we would entertain that motion subject to the following conditions: Before submitting any motion to this court, the respondent must present to the Disciplinary Administrator a plan of probation addressing his then-present circumstances as well as a proposed plan of practice as a Kansas attorney, addressing those factors addressed in his original probationary plan that remain applicable, including evidence of ongoing treatment for depression along with a current assessment of that condition from a clinician. If the Disciplinary Administrator approves the probationary plan submitted by the respondent, that approval shall be attached to the respondent’s motion to suspend his remaining 2 years of his suspension. If his probationary plan is not approved by the Disciplinary Administrator, the respondent may file his motion without such approval. This court will then consider the respondent’s motion to suspend the balance of his 2-year suspension. If the court approves the probation plan, the court will suspend the remaining 2 years of the respondent’s suspension and place the respondent on probation for a period of 2 years subject to conditions contained in such order. If the court denies the respondent’s motion, the respondent shall complete the term 'of his 3-year suspension from practicing law in the state of Kansas. Conclusion and Discipline It Is Therefore Ordered that James A. Cline be suspended from the practice of law in the state of Kansas for a period of 3 years, effective the date of this opinion in accordance with Supreme Court Rule 203(a)(2) (2008 Kan. Ct. R. Annot. 266). It Is Further Ordered that after a period of 1 year, the respondent may apply by motion to this court for a suspension of the remaining 2 years of his 3-year suspension under the provisions set forth in this opinion. If such application is approved, additional orders will be entered by this court. If the application is not approved, the respondent shall complete the term of his 3-year suspension. It Is Further Ordered that the respondent shall comply with Supreme Court Rule 218 (2008 Kan. Ct. R. Annot. 350), and in the event the respondent would seek reinstatement, he shall comply with Supreme Court Rule 219 (2008 Kan. Ct. R. Annot. 365). It Is Further Ordered that this opinion be published in the official Kansas Reports and that the costs herein be assessed to the respondent.	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The opinion of the court was delivered by Beier, J.-. This is an appeal from respondent John Colt’s indefinite civil commitment as a sexually violent predator under K.S.A. 59-29a01 et seq. (the Act). He argues that his jury should not have been permitted to consider evidence of his prior crimes, particularly those that had no sexual component; that the State’s expert based his opinion on inadmissible evidence in violation of K.S.A. 60-456(b); and that the evidence was insufficient to support the jury’s verdict. We affirm. This proceeding followed from Colt’s 2001 conviction of one count of aggravated sexual battery and one count of aggravated burglary, arising from his unlawful entry into his neighbor’s apartment and ensuing attempted rape. In this proceeding, Colt filed a motion in limine to preclude the State from offering evidence of Colt’s 1997 convictions for forgery and theft; a 1997 conviction for battery; a 1997 conviction for battery on a law enforcement officer; a 1996 conviction for theft of property valued at less than $500; two 1995 convictions for disorderly conduct; a 1995 conviction for criminal damage; a 1994 conviction for battery; a 1994 conviction for unlawful deprivation of property; a 1993 conviction for unlawful deprivation of property; 1993 convictions for theft and burglary; 1991 convictions for battery and criminal damage; and Kansas Department of Corrections disciplinary reports from 1998 through 2004. The district judge denied Colt’s motion as to all of the prior convictions, noting the State’s expert witness had relied upon them. The district judge also determined that the probative value of evidence of the convictions outweighed any prejudicial effect. The district judge granted Colt’s motion as to the disciplinary reports. Before trial, the parties stipulated to Colt’s 2001 aggravated sexual batteiy and aggravated burglary convictions and “[t]o die foundation of [Colt’s] medical and mental health reports/records, criminal histoiy, court records, sex offender treatment records, department of corrections institutional file, Lamed State Security Hospital, and other files relied upon by tire [State’s] and/or [Colt’s] witnessfes] in their evaluations and opinions, designated as State’s exhibit #3 for identification purposes.” At trial, clinical psychotherapist Rex Rosenberg testified for the State, explaining that Colt’s criminal history played a significant role in his evaluation. Rosenberg provided the jury with a list of Colt’s prior crimes: “In terms of the convictions, . . . there was a conviction for batteiy and criminal damage to property under $500 . . . theft under $500, theft over $500 and a burglary of a motor vehicle[,] aircraft or other means of conveyance . . . deprivation of property, . . . batteiy, . . . criminal damage to property over $500, . . . disorderly conduct, . . . theft under $500, . . . battery against a law enforcement officer, . . . he was arrested for indecent liberties with a minor .... “two counts of forgery and two counts of theft less than $500 . . . possession of a forged instrument, . . . battery, and . . . theft over $500 . . . .” Rosenberg also described the documents he reviewed before interviewing Colt: “This was [Colt’s] fifth admission to State Security Hospital. So, I had all five files from the previous admissions. Now, in tiróse files, it would be pre-admission information, admission intake assessments, the forensic evaluations that had been done previously, no indications of anticipated release related to this particular evaluation. There would be evaluations from the Department of Corrections, Sex Offender Treatment Program, discharge summary, presentence investigations, Kansas Criminal History Worksheets, complaints, journal entries from the Court, affidavits, Personal Maintenance Program Contract, Department of Corrections evaluation qualification report, presentence investigation, some psychiatric notes, corrections counselor progress notes[,] information from a previous hospitalization . . . Adolescent Treatment Program, discharge summary, health center nursing evaluation . . . psychiatric rating scale St. Margaret Health Center, nurse’s discharge records, counselor progress note, psychiatric notes, more psychiatric counsel notes, more counsel notes, Wyandotte Mental Health discharge summary, psychiatric evaluation from February 1987, Missouri Department of Mental Health psychiatric assessment, a discharge summary from the Wyandotte Health Center summary from 1989, the Missouri Department of Mental Health summary discharge 1988, youth progress report from Youth Center of — 1994 Center of Topeka, pre-release progress notes from 1996, Shawnee Medical discharge summary from February 2001, summary from August 1991, Leavenworth County, complaint, a progress supporting affidavit, . . . victim impact statement dated April 1987 and 1988, victim standard report assessment from March 1997, a narrative report prepared by police, a voluntary statement from March 1997, more information with regards to forged checks, another voluntary statement.” Rosenberg also expanded on the contents of certain records: “[A note from the] Osawatomie State Hospital[] indicated he reported to have put a cat in the microwave and had killed a family dog by throwing rocks at the - -a report from Providence St. Margaret Health Center in 1992 indicated that was his first admission as a 14 year old because of the suicidal threat. He had been jailed for auto theft. He was arrested at that time for automobile larceny and a high speed chase ... he had six auto theft charges with more to be prosecuted. The patient admitted to truancy, running away, smoking, noncompliance — stated he stole cars for joyrides .... The Youth Center of Topeka — at age 16, that happened — following three counts of misdemeanor criminal deprivation of property, he and some friends were drunk one night. And then at age 17, [Colt] was admitted to Topeka State Hospital for five months as a result of fighting in school, breaking into a house, and being kicked out of group homes. At age 12, he phoned the police and told them he was going to shoot his father. . . . “. . . He was admitted to the Western Missouri Mental Health facility following a long history of behavioral problems starting at the age of three, that included fear, setting — destruction of property, fighting, illegal and cruelty to animals. Those are some of the documents I have reviewed.” Rosenberg further testified that Colt had acknowledged during interviews that thoughts of rape sexually stimulated him. Colt had said that, within 5 minutes of being placed in jail in the 2001 case, “he masturbated to fantasies of what could have happened.” Colt had also admitted to sodomizing a prostitute. Rosenberg also administered two screening tests to Colt. Rosenberg diagnosed Colt with Paraphilia Not Otherwise Specified; alcohol dependence; partial sustained remission in a controlled environment; cannabis dependence; impartial sustained remission in a controlled environment; and antisocial personality disorder. Rosenberg opined that Colt has serious difficulty controlling his behavior and would be at a high risk to commit a future sex offense. Colt appealed his commitment to our Court of Appeals, which affirmed. We granted his petition for review. Admission of Evidence of Prior Crimes There are two parts to Colt’s argument on this point. Like the respondent in In re Care & Treatment of Miller, 289 Kan. 218, 210 P.3d 625 (2009), he contends that broad language in State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006), applies and dictates reversal under K.S.A. 60-455. He also contends that evidence of prior crimes with no sexual component was irrelevant, and that its admission undermines the constitutionality of the Act. Gunby The merit of and outcome on this argument by Colt is controlled by our decision today in Miller, 289 Kan. at 225-27. As we said there, the broad language in Gunby regarding K.S.A. 60-455 analysis must be circumscribed in light of our earlier decision in In re Care & Treatment of Hay, 263 Kan. 822, 953 P.2d 666 (1998), and In re Care & Treatment of Crane, 269 Kan. 578, 7 P.3d 285 (2000) vacated on other grounds 534 U.S. 407, 151 L. Ed. 2d 856, 122 S. Ct. 867 (2002), sexually violent predator commitment cases. In Crane, we stated: “ “We are hard-pressed to see how [prior bad acts] can be prohibited by K.S.A. 60-455 [in sexually violent predator cases] when it is an essential element of the required proof and necessaiy for the decision-making process of the jury.’ [Citation omitted.] “[E]vidence of prior conduct [is] material to the question of likelihood that the respondent would engage in repeat conduct as well as to the element of conviction of prior conduct.” Crane 269 Kan. at 591-92. Our Miller decision recognizes that Gunby “did not discuss the unique nature of commitment proceedings under the Act. [It] focused only on K.S.A. 60-455 and common-law interpretations and applications of it in the setting of criminal trials.” 289 Kan. at 225. Neither K.S.A. 60-455 nor Gunby governs admission of prior crimes evidence in sexually violent predator commitment proceedings such as Colt’s. Nonsexual Priors The second part of Colt’s challenge to admission of evidence about his prior crimes concerns those lacking a sexual component. Again, we took up at least the relevance aspect of the same question in Miller, 289 Kan. at 227-29. “ ‘Relevant evidence’ means evidence having any tendency in reason to prove any material fact.” K.S.A. 60-401(b). “The concept of relevance under Kansas law includes both whether evidence is probative and whether it is material.” State v. Vasquez, 287 Kan. 40, 50, 194 P.3d 563 (2008). We review whether evidence is probative under an abuse of discretion standard and whether it is material under a de novo standard. See Vasquez, 287 Kan. at 50. A district judge’s determination on whether certain evidence is unduly prejudicial is reviewed for abuse of discretion. State v. Reid, 286 Kan. 494, 507-08, 186 P.3d 713 (2008). As we discussed fully in Miller, 289 Kan. 228, nonsexual prior crimes of a respondent in a sexually violent predator commitment proceeding may be both probative and material of certain diagnoses and behavior patterns. We have no hesitancy to rule that Colt’s complete criminal history helped to explain Rosenberg’s diagnoses here. Colt also argues that it was impossible for the district judge in this commitment proceeding to make a valid call on relevance without knowing more about the facts of Colt’s prior crimes. This argument misses the point. Given Colt’s diagnosis of antisocial personality disorder, which covers persons whose behavior includes a pervasive pattern of disregard for and violation of the rights of others, see American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders § 301.7, p. 701 (4th ed. rev. 2005), the mere fact of Colt’s many prior convictions over several years was both probative and material. The Act requires a person identified as a sexually violent predator to suffer from a mental abnormality. See K.S.A. 59-29a02(a). Colt’s criminal history was persuasive evidence of one of the principal markers of his malady. Colt’s other relevance argument — that K.S.A. 59-29a03 explicitly limits the types of offenses about which evidence can be admitted in a sexually violent predator commitment proceeding and that his prior crimes are not among them — requires statutory interpretation. We review a district judge’s interpretation of statutes de novo and rely exclusively on the plain language of the text unless it is unclear or ambiguous. See State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008) (de novo review); In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007) (plain language). Colt’s argument is wholly without merit. The enumerated crimes to which Colt malees reference are listed in K.S.A. 59-29a02(e), which defines the phrase “sexually violent offense.” That phrase is used in the Act as a descriptor for the types of crimes that may motivate the State to seek commitment in the first place, see K.S.A. 59-29a03(a)(l), (2), (3), (4), not as a descriptor for the types of crimes that may be used to determine the remainder of a person’s qualifications for the label of “sexually violent predator,” e.g., a mental abnormality or personality disorder. See K.S.A. 59-29a02(a). K.S.A. 59-29a03 does not address the presentation of evidence in the trial of a commitment petition at all. The district judge did not err in rejecting Colt’s effort to exclude proof of his prior crimes on relevance grounds. Constitutionality As mentioned, Colt also makes an argument that “admission into evidence of all other crimes or civil wrongs undermines the constitutionality of the . . . Act.” His support for this statement is almost fatally concise: “These proceedings do not violate double jeopardy concepts because they are civil actions designed not as punishment for ordinary criminals but those individuals suffering from a mental illness who is ‘[ljikely to engage in repeat acts of sexual violence.’ To allow all prior convictions would allow propensity evidence not of sexual violence but of being a criminal recidivist. Kansas v. Crane, 534 U.S. 407 [, 151 L. Ed. 2d 856, 122 S. Ct. 867] (2002), requires that the application of the Sexual Predator Act distinguish ‘die dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case.’ ” This passage from Colt’s brief, repeated in his petition for review, appears to assert that the only thing saving the Act from invalidity under constitutional double jeopardy doctrine is its differentiation between persons who are dangerous because they are criminals at all from persons who are dangerous because they are criminals with mental disorders that make them candidates to commit future violent sex offenses. This is not what the United States Supreme Court has said. Although Crane did emphasize that our statutory scheme enabling indefinite civil commitment of sexually violent predators must require proof of a respondent’s “special and serious lack of ability to control behavior,” 534 U.S. at 412-13, that requirement arises out of substantive due process rather than double jeopardy concerns. Crane, 534 U.S. at 409 (quoting Kansas v. Hendricks, 521 U.S. 346, 356, 360, 138 L. Ed. 2d 501, 117 S. Ct. 2072 [1997]). Regardless, Colt’s constitutional argument is unpersuasive. This is a civil and not a criminal proceeding. See Hendricks, 521 U.S. at 369; see also Hay, 263 Kan. at 830 (double jeopardy not at issue in civil cases). Further, this is not a case in which the State chose to pursue commitment under the Act based solely on a respondent’s nonsexual prior crimes; such an approach would run afoul of the high court’s limits on the Act’s constitutional interpretation. See Crane, 534 U.S. at 412-13. Here, the State went far beyond reliance on Colt’s long nonsexual rap sheet. It began by stipulating to his sexually violent offense of aggravated sexual battery, and it continued with its expert’s testimony about Colt’s interviews, test results, and diagnoses. Although Colt’s criminal history, including all of his nonsexual prior crimes, formed a part of the evidence against him, it was only a part. KS.A. 60-456(b) Colt also challenges Rosenberg’s reliance on records regarding his criminal history based on K.S.A. 60-456(b) and our decision in State v. Gonzalez, 282 Kan. 73, 145 P.3d 18 (2006). Because an expert may base an opinion only on “facts or data perceived by or personally known or made known to the witness at the hearing,” K.S.A. 60-456(b), and because Colt’s prior convictions were admitted into evidence solely because they undergirded Rosenberg’s opinion, the statute was, in Colt’s view, violated. The State responds that the parties stipulated to the foundation for the criminal history records and that K.S.A. 60-460(r) provides a hearsay exception for judgments of previous convictions. In this case, the records on Colt’s criminal history were authenticated when the parties stipulated to their foundation. That does not end our inquiry under 60-456(b), however, as our Gonzalez decision explained regarding certain California records on which expert Carolyn Huddleston relied to form her psychological opinion for a competency hearing: “K.S.A. 60-456(b) . . . precludes an expert witness in Kansas from giving an opinion based on facts or data not ‘perceived by or personally known or made known’ to the expert at trial or, as in this case, at a competency hearing. “[Huddleston’s] opinion regarding defendant’s competency, insofar as it depended on the California records, was not based on ‘facts or data perceived by or personally made known’ to [Huddleston] because her awareness of those facts or data was not attained through her own senses. Further, the phrase ‘at the hearing’ refers to facts put in evidence. State v. Strauch, 239 Kan. 203, Syl. ¶ 4, 718 P.2d 613 (1986); Casey v. Phillips Pipeline Co., 199 Kan. 538, 546, 431 P.2d 518 (1967). In this case, defense counsel never offered the California records for admission under one of the exceptions to the hearsay rule, and those records were never admitted except as an appellate exhibit by the trial court. The letter from the custodian of the records was properly rejected by the trial court because neither the records nor the letter was properly authenticated. Because the California records were never admitted into evidence at the competency hearing, that portion of Dr. Huddleston’s opinion which was based on the California records was not based on facts or data personally made known to the witness ‘at the hearing.’ “K.S.A. 60-456(b) differs from its federal counterpart, Rule 703 of the Federal Rules of Evidence. . . . As noted in 4 Vernon’s Kansas C. Civ. Proc. § 60-456(b), Author’s Comments (2005 Supp.): ‘The rationale of the Federal Rule is that judicial practice should be brought in line with the practice of experts themselves when not in court, who, in the case of physicians, may malee life and death decisions on the basis of hearsay statements.’ “Under the federal rule, . . . if it is the customary practice in the expert’s specialty to consider reports from nontestifying third parties in formulating an opinion, the expert’s testimony may be based on such reports. Under such circumstances, however, evidence of the report is not admitted as substantive proof of the report’s truth but for the limited purpose of showing the basis of the expert’s opinion. Consequently, upon request, the opposing party is entitled to a limiting instruction by the trial judge. See Imwinkelried, Evidentiary Foundations § 9.03(4)(c) (6th ed. 2005). “In contrast to the federal rule, Kansas has adopted the traditional approach to the question whether an expert may rely on reports from third parties, such as other experts, if the reports do not fall within any hearsay exception. Under the Kansas rule, experts’ opinions based upon hearsay are not admissible in any court proceedings. See In re Care & Treatment of Foster, 280 Kan. 845, Syl. ¶ 9, 127 P.3d 277 (2006). Because the California records were not qualified and admitted under one of the exceptions to the hearsay rule, the records themselves remained inadmissible hearsay upon which Dr. Huddleston could not base her opinion that defendant was incompetent to stand trial.” State v. Gonzalez, 282 Kan. at 87-88. The State urges us to overcome any hearsay problem with the records Rosenberg relied upon by looking to K.S.A. 60-460(r), an exception allowing admission of final judgments “adjudging a person guilty of a felony.” We do not have the records themselves before us, but we need not follow the path the State suggests. Our review reveals that the parties not only stipulated to their foundation but also agreed that the records’ admission was unnecessary, as concerns about their content could “be appropriately addressed simply by asldng [Rosenberg] to refer specifically to the specific record if he has testified about something that he claims is from the record.” Admission of unreliable statements by out-of-court declarants to prove the truth of the matter asserted is exactly what the hearsay rule is designed to prevent; this agreement appears to have efiminated any useful purpose our enforcement of the rule might serve; waived any initial objection to the Rosenberg’s rebanee on and reference to the records; and, to the extent admission of his opinion was error, invited it. See State v. Murray, 285 Kan. 503, 522, 174 P.3d 407 (2008) (invited error no basis for relief on appeal). Sufficiency of the Evidence The State’s burden under the Act is proof beyond a reasonable doubt. See K.S.A. 59-29a07(a). Our standard of review asks whether, after review of all the evidence, viewed in the light most favorable to the State, we are convinced a reasonable factfinder could have found the State met its burden to demonstrate Colt is a sexually violent predator. See Hay, 263 Kan. at 842. The sufficiency question is not a close one bn the facts in this record. Rosenberg’s diagnoses of Colt included the mental abnormality of Paraphilia Not Otherwise Specified. The admitted documentary evidence included a handwritten “SEXUAL HIS[tory] from Colt, which discussed his childhood and adult sexual experiences and expressed escalating hostility toward women, including a plan to go on a ‘raping spree.’ ” The evidence before the jury was more than sufficient under even the demanding reasonable doubt standard. Affirmed. McFarland, C.J., not participating. Standridge, J., assigned.	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The opinion of the court was delivered by LUCKERT, J.: In this opinion we address the question of whether a district judge may validly ordér a defendant who has been convicted of a felony to pay a docket fee, a booking fee, Board of Indigents’ Defense Services (BIDS) attorney fees, and a BIDS application fee if the judge did not announce the order in open court during the sentencing proceeding. The defendants in this consolidated appeal argue that imposing these fees in a journal entry of judgment without an oral announcement violates K.S.A. 22-3405 and K.S.A. 2008 Supp. 22-3424(a), which require felony criminal judgments to be rendered and sentences to be imposed in open court. We reject this argument, finding these fees are not part of the sentence because they are not imposed for punishment but are taxed as costs in order to recoup expenses incurred by a unit of government in processing, prosecuting, or providing services for the defense of a criminal case. Further, although the fees are a judgment, K.S.A. 22-3803 provides that costs are to be taxed in a statement of costs issued at the conclusion of a criminal proceeding. Consequently, costs need not be stated as part of the judgment in open court, although the better practice is to do so. Nevertheless, we agree with the defendants’ alternative argument that due process requires a judge to make the findings necessary to support the allocation and assessment of any cost where the assessment or amount is not mandatory, i.e., where the legislature has granted judges discretion to impose costs or to determine the amount of costs. Because findings were, not made regarding the discretionary amount of BIDS fees in Wenzel’s case, the BIDS’s orders in his case are vacated and the case is remanded to the district court. In Robert G. Phillips’ case, the district judge made adequate findings, and the imposition of costs is affirmed. Procedural Background The question of the validity of the various orders to pay costs was raised in separate petitions seeking this court’s discretionary review of two Court of Appeals opinions: State v. Wenzel, 39 Kan. App. 2d 194, 177 P.3d 994 (2008), and State v. Phillips, No. 96,754, 2007 WL 4571093, unpublished opinion filed December 28,2007. We granted review of questions related to the written taxation of costs, denied review on other questions presented in each appeal, and consolidated the cases for proceedings before this court. In Wenzel, a Court of Appeals panel held that orders to pay BIDS attorney fees and the BIDS application fee may be included in a journal entry of judgment even if not announced from the bench because the assessment of such fees is mandatory under K.S.A. 22-4513 (fee for counsel and defense services) and K.S.A. 22-4529 (application fee) and the requirement of paying these fees was not part of Wenzel’s punishment for a felony conviction of driving under the influence. Nevertheless, because K.S.A. 21- 4603d(i) and K.S.A. 22-4529 require a district judge to consider a defendant’s ability to pay when imposing BIDS attorney fees and BIDS application fees, respectively, and the record does not reflect that the district judge did so, the Court of Appeals vacated the fees and remanded with directions to consider Wenzel’s ability to pay in deciding if the fee should be imposed and, if so, how much Wenzel should be required to pay. 39 Kan. App. 2d at 200-02. In State v. Phillips, a different panel of the Court of Appeals similarly found no error in assessing the docket fee, a booking fee, and the BIDS application fee in the journal entry because “court costs and other court-ordered fees are not punitive in nature” and they were not part of Phillips’ criminal sentence for burglary and felony theft. The Court of Appeals affirmed all of the fees imposed against Phillips. These holdings are consistent with decisions of some other panels of the Court of Appeals. E.g., State v. Loggins, 40 Kan. App. 2d 585, 194 P.3d 31 (2008); State v. Bale, 39 Kan. App. 2d 655, 182 P.3d 1280 (2008); State v. Patterson, No. 99,759, 2009 WL 863111, unpublished opinion filed March 27, 2009; State v. Rose, No. 98,902, 2008 WL 4849440, unpublished opinion filed November 7, 2008; State v. Clark, No. 97,442, 2008 WL 3852162, unpublished opinion filed August 15, 2008; State v. Bench, No. 98,151, 2008 WL 2891073, unpublished opinion filed July 25, 2008; State v. Stevens, No. 97,640,2008 WL 2510176, unpublished opinion filed June 20, 2008; State v. Proctor, No. 97,504,2008 WL 1847637, unpublished opinion filed April 18, 2008; State v. Bradley, No. 94,810, 2007 WL 2239216, unpublished opinion filed August 3, 2007, rev. denied 285 Kan.1175 (2008); State v. Littleton, No. 94,611, 2006 WL 2043104, unpublished opinion filed July 21, 2006, rev. denied 282 Kan. 794 (2006); State v. Harley, No. 93,349, 2005 WL 2665768, unpublished opinion filed October 14, 2005, rev. denied 281 Kan. 1380 (2006). Other panels have reached the opposite conclusion, however, and have reversed orders to pay fees if the district judge did not pronounce the fees as part of a defendant’s sentence. See, e.g., State v. Whillock, 38 Kan. App. 2d 431, 436, 168 P.3d 56 (2007); State v. Bedell, 36 Kan. App. 2d 870, 878, 146 P.3d 1096 (2006), rev. denied 283 Kan. 932 (2007); State v. Miller, No. 96,025, 2007 WL 2695826, unpublished opinion filed September 14, 2007, rev. denied 285 Kan. 1176 (2008). We granted the petitions for review in these cases to resolve this conflict in the Court of Appeals’ decisions. Standards of Review The issue of whether a district judge must announce an order to pay fees at the sentencing hearing is dictated by statutory requirements and, as a result, requires our interpretation of various statutes relating to sentencing procedures and the imposition of costs. See State v. Scaife, 286 Kan. 614, 625, 186 P.3d 755 (2008) (BIDS application fee); State v. Robinson, 281 Kan. 538, 539, 132 P.3d 934 (2006) (BIDS attorney fee); State v. Granville, 26 Kan. 158, 160 (1881) (noting appellant’s argument that costs in criminal cases were unknown at common law and can be imposed only if authorized by statute). The interpretation of a statute presents a question of law over which appellate courts exercise unlimited review. See Scaife, 286 Kan. at 625. When a court is called upon to interpret a statute, the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language it enacted. In re Adoption of G.L.V., 286 Kan. 1034, 1041, 190 P.3d 245 (2008). For this reason, when the language of a statute is plain and unambiguous, courts need not resort to statutoiy construction. In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007), cert. denied 172 L. Ed. 2d 239 (2008). If a statute is subject to more than one interpretation, however, a court attempting to discern legislative intent may employ rules of statutory construction and look to the historical background of the enactment, the circumstances attending its passage, the purposes to be accomplished, and the effects the statute may have under the various constructions suggested. In re Adoption of G.L.V., 286 Kan. at 1041; State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, 768-69, 69 P.3d 1087 (2003). Also, our standard of review on the defendants’ due process claim is unlimited. Robinson, 281 Kan. at 540; Murphy v. Nelson, 260 Kan. 589, 594, 921 P.2d 1225 (1996). Sentence in Open Court Both defendants base their argument on the requirements of K.S.A. 22-3405, which provides in part: “(1) The defendant in a felony case shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided bylaw.” (Emphasis added.) Similarly, K.S.A. 2008 Supp. 22-3424(a) states: “The judgment shall be rendered and sentence imposed in open court.” As the defendants argue, K.S.A. 22-3405 and K.S.A. 2008 Supp. 22-3424(a) clearly require that a defendant in a felony case be present in open court for the imposition of sentence. A corollary to this rule is that “[t]he court’s judgment and sentence in a criminal case do not derive their effectiveness from the journal entry, or from any act of the clerk; they are effective when announced.” State v. Royse, 252 Kan. 394, 397, 845 P.2d 44 (1993). Stated another way: “The journal entry ‘is thus a record of the sentence imposed; but the actual sentencing occurs when the defendant appears in open court and the judge orally states the terms of the sentence.’ ” Abasolo v. State, 284 Kan. 299, 303, 160 P.3d 471 (2007). The rationale for these rules is that announcing the sentence in the defendant’s presence “protects the defendant’s rights, as ‘[t]he defendant is personally present [when the sentence is imposed], and thus knows that at that moment he or she has been sentenced, fined, or placed on probation, or that the imposition of sentence has been suspended.’ (Emphasis added.)” Abasolo, 284 Kan. at 308 (quoting State v. Moses, 227 Kan. 400, 402-03, 607 P.2d 477 [1980]). Relying on these statutes and cases, the defendants argue docket, booking, and BIDS fees are part of the sentence and, therefore, must be announced in open court in order to be valid. This argument, of course, assumes that these fees are part of the sentence. Generally, a “sentence” is “the punishment imposed on a criminal wrongdoer.” Black’s Law Dictionary 1393 (8th ed. 2004). Consistent with this definition, in past cases this court has examined whether fees are imposed as part of the punishment or as a nonpunitive attempt to recoup court costs. Court Costs Historically, court costs have been viewed as nonpunitive. This view dates back to the early days of statehood when this court first interpreted Kansas statutes to provide that “[a] judgment of conviction in a criminal case in the district court carries costs against the defendant.” State v. Granville, 26 Kan. 158, Syl. ¶ 1 (1881). In Granville, the imposition of costs was not referred to as a “sentence” but as a “taxation of costs” that was imposed for the purpose of shifting to the guilty defendant the monetary burdens incurred by the sheriff and county commissioners who would otherwise have to fund the costs of a prosecution. Granville, 26 Kan. at 160. In other early cases, this court stated explicitly that the costs were not part of the sentence. For example, in State v. Schmidt, 34 Kan. 399, 404, 8 P. 867 (1885), the court held that a county attorney s fee, authorized by statute to be assessed against a defendant following conviction of a prohibitory liquor law, “is not imposed as a part of the punishment, but is simply imposed as a part of the costs of the prosecution, for services rendered by the county attorney.” After the early cases, few decisions have discussed the issue, but the occasional case has recognized the nonpunitive nature of an order to pay fees. E.g., Robinson, 281 Kan. at 547 (discussing order to pay BIDS attorney fees and stating “the assessment itself is not punitive; it is not a punishment or part of the sentence at all”); State v. Thomson, 188 Kan. 171, 176-78, 360 P.2d 871 (1961) (discussing early cases in upholding order to tax juror fees and mileage as costs); State v. Lopez, 36 Kan. App. 2d 723, 727, 143 P.3d 695 (2006) (stating that “Kansas courts have held that statutes requiring a convicted defendant to pay court costs were not intended to penalize the defendant, but to allocate the expenses incurred in prosecution”); State v. Dean, 12 Kan. App. 2d 321, Syl. ¶ 2, 743 P.2d 98, rev. denied 242 Kan. 904 (1987) (same); State v. Waufle, 9 Kan. App. 2d 68, 79, 673 P.2d 109 (1983) (costs do “not create any liability against defendant for the crime committed”). Consistent with the recoupment purposes of cost statutes, these cases recognize that an order to pay costs may be treated as a civil judgment. E.g., State v. Shannon, 194 Kan. 258, 263, 398 P.2d 344 (1965) (rejecting defendant’s complaint regarding judge “taxing the costs of the case against him and permitting execution to issue on the judgment and a levy to be made upon the personal property of the defendant to satisfy the judgment”). Consequently, a defendant who has the ability to pay costs but refuses to pay them as ordered may be required to spend time in jail similar to a civil litigant who fails to abide by a court order to pay a judgment. K.S.A. 22-3425; cf. Ott v. Ott, 129 Kan. 541, 283 P. 918 (1930); see Bearden v. Georgia, 461 U.S. 660, 76 L. Ed. 2d 221, 103 S. Ct. 2064 (1983); State v. Higgins, 240 Kan. 756, 759, 732 P.2d 760 (1987); but see State v. White, 41 Kan. App. 2d 943, 206 P.3d 553 (2009) (discussing whether failure to abide by order to pay costs imposed as condition of probation can serve as basis for revoking probation). The current iteration of the cost statute preserves the nonpunitive nature of costs, stating: “If the defendant in a criminal case is convicted, the court costs shall be taxed against the defendant and shall be a judgment against the defendant which may be enforced as judgments for the payment of money in civil cases.” (Emphasis added.) K.S.A. 22-3801(a). Consequently, resolution of Phillips’ and Wenzel’s arguments that the fees are part of the sentence depends on whether the fees at issue are costs. Docket and Booking Fees First, we focus on Phillips’ complaint that the journal entry of judgment required him to pay the docket fee and a booking fee. Wenzel does not make a similar argument. Docket fees are provided for in K.S.A. 2008 Supp. 28-172a, which states in part: “[Wjhenever the prosecuting witness or defendant is adjudged to pay the costs in a criminal proceeding in any county, a docket fee shall be taxed.” (Emphasis added.) Docket fees are not the only statutorily authorized costs, however. Other statutes impose additional costs, including the booking fee that was assessed against Phillips pursuant to K.S.A. 2008 Supp. 12-16,119(a), which provides, in part, that a convicted person “shall pay a separate court cost if the board of county commissioners or . . . the governing body of a city, where a city operates a detention facility, votes to adopt such a fee as a booking or processing fee.” (Emphasis added.) This statute indicates that the fee is charged for the purpose of recouping expenses by stating: “Disbursements of these fees shall be to the general fund of the governing body responsible for the funding of the sheriff, police department or countywide law enforcement agency that obtains the fingerprints.” K.S.A. 2008 Supp. 12-16,119(c). Hence, both the felony docket fee imposed pursuant to K.S.A. 2008 Supp. 28-172a and the booking fee imposed pursuant to K.S.A. 2008 Supp. 12-16,119 are court costs, are not punitive, and are not a part of Phillips’ sentence. BIDS Attorney Fees Next, we consider Wenzel’s complaint that the journal entry of judgment required him to pay BIDS attorney fees when the district judge had not orally announced such attorney fees at the sentencing hearing and when defense counsel had requested a waiver of “BIDS fees.” Phillips does not present arguments pertaining to this issue. We answered the question of whether an assessment of BIDS attorney fees was punitive in Robinson, 281 Kan. at 547, and concluded “the assessment itself is not punitive; it is not a punishment or part of the sentence at all.” We reached this conclusion because of the language of K.S.A. 22-4513(a) and K.S.A. 21-4603d(i), which do not use the word “costs” but clearly indicate that the purpose of imposing the fee is to recoup a portion of the costs incurred by the State in providing the services of an attorney to those who have the ability to pay some or, over time, all of the cost. The language of K.S.A. 22-4513(a) parallels that of the general cost statute — -K.S.A. 22-3801(a) — by stating that “[i]f the defendant is convicted, all expenditures made by the state board of indigents’ defense services to provide counsel and other defense services to such defendant . . . shall be taxed against the defendant and shall be enforced as judgments for payment of money in civil cases.” Similarly, K.S.A. 21-4603d(i), which lists possible dispositions for crimes committed after July 1, 1993, refers to the BIDS attorney fees as a reimbursement, stating “the court shall order the defendant to reimburse the state general fund for all or a part of the expenditures by the state board of indigents’ defense services to provide counsel and other defense services to the defendant.” BIDS Application Fee Finally, we consider the complaints that both Phillips’ and Wenzel’s journal entries of judgment included an order that the defendants pay the BIDS application fee of $100, as set forth in K.S.A. 22-4529. Neither district judge announced that part of the judgment at the sentencing hearings. The application fee is provided for in K.S.A. 22-4529, which provides in relevant part: “Any defendant entitled to counsel pursuant to K.S.A. 22-4503, and amendments thereto shall pay an application fee in the amount of . . . $100 on or after July 1, 2004, to the clerk of the district court.” The issue of whether this application fee is part of the sentence was answered in Scaife, 286 Kan. at 625, and State v. Hawkins, 285 Kan. 842, 851, 176 P.3d 174 (2008); see State v. Casady, 40 Kan. App. 2d 335, 191 P.3d 1130 (2008), rev. granted January 22,2009. The rationale of those cases rested on the point in the criminal proceeding when the order to pay the fee is actually imposed, which is long before sentencing, rather than the nonpunitive nature of the fee. In the earliest of these cases, Hawkins, we observed that the logical and practical point to determine whether to assess the application fee and, if so, whether to waive a part or all of the fee is the time the defendant applies for appointed counsel. 285 Kan. at 852. At that point, a defendant is required to file an affidavit as to his or her financial condition, and the district court may interrogate the defendant under oath concerning the affidavit’s contents, may direct the prosecutor or other county officer to investigate the defendant’s financial condition, or may require the production of evidence on the issue of the defendant’s inability to employ counsel. K.S.A. 22-4504(a). Upon the basis of the affidavit and such other evidence as may be brought to the district court’s attention, the court is to malee a determination whether the defendant is indigent, in full or in part, or whether the defendant is financially able to employ his or her own counsel. K.S.A. 22-4504(b). And “if any fee ordered by the court remains unpaid at sentencing, the district court may include the unpaid fee in its sentencing order without additional findings.” 285 Kan. at 853. At the defendant’s first appearance in Hawkins, tire district court ordered the defendant to pay the application fee within 30 days. The defendant apparently did not comply with that order, and no action was taken to enforce it before the sentencing hearing. Regardless, as emphasized by the Hawkins court, “an order was in place which Hawkins never attempted to modify” and the district court “was not required to malee any further inquiry.” 285 Kan. at 854. Thus, the Hawkins court upheld the imposition of the $100 application fee. The Hawkins rationale was reiterated in Scaife, 286 Kan. at 625, where the defendant complained that the journal entry included the BIDS application fee, when the district court had not specifically ordered that fee at the sentencing hearing. Like Phillips and Wenzel in our case, Scaife reminded this court of the rule that a criminal sentence is effective when pronounced from the bench, rather than when the journal entry of sentencing is filed, and that “[a] journal entry which imposes a sentence at variance with that pronounced from the bench is erroneous and must be corrected to reflect the actual sentence imposed.” ’ [Citations omitted.]” Scaife, 286 Kan. at 626. The district court in Scaife did state that the “costs in this matter are assessed against the defendant,” but Scaife argued this pronouncement was insufficient to be a specific order for the BIDS application fee. After discussing Hawkins, this court reiterated that Scaife “incurred his obligation to pay the application fee when he applied for appointed counsel, long before sentencing.” Scaife, 286 Kan. at 626. In addition, although Scaife had requested that the journal entry be “corrected to delete” the district court’s order for the BIDS application fee, this court stated the journal entry “did not deviate from the court’s pronouncement” with regard to that fee, and therefore it was unnecessary to “correct” the order. Scaife, 286 Kan. at 626. Thus, although K.S.A. 21-4603d(a)(9) provides that the fee is a disposition that “may” be stated at sentencing “unless waived by the court,” under the holding in Hawkins and Scaife, the journal entry merely records the fee that was assessed by the court upon the appointment of counsel. Consequently, it is not necessary that an assessment of the BIDS application fee be announced at the sentencing hearing to be effective. Moreover, the conclusion reached in Robinson that the BIDS fees are imposed to recoup costs incurred in providing services to the partially indigent is equally applicable to the application fee. Hence, we conclude the order to pay is made at the time of appointment of counsel and before sentencing, is nonpunitive, is merely an imposition of costs, and is not part of the sentence. Robinson, 281 Kan. at 547. Judgment in Open Court Even if the docket fee, booking fee, BIDS attorney fees, and BIDS application fee are not part of the sentence, we must consider whether the wording of K.S.A. 2008 Supp. 22-3424(a)— which states that “[t]he judgment shall be rendered and sentence imposed in open court” (emphasis added) — requires us to conclude the fees must be stated in open court as part of the judgment. There is ambiguity relating to whether the legislature intended to refer to “judgment” and “sentence” as separate concepts or whether the reference is to a single concept where judgment and sentence are the same. In Royse, 252 Kan. at 397, this court stated that “[o]rdinarily, in a legal sense, ‘sentence’ is synonymous with ‘judgment’ and denotes the action of a court of criminal jurisdiction formally declaring to the defendant the legal consequences of the guilt to which he has confessed or of which he has been convicted.” This conclusion is further supported by the allocution statute, K.S.A. 22-3422, which states: “When the defendant appears for judgment, he must be informed by the court of the verdict of the jury, or the finding of the court and asked whether he has any legal cause to show why judgment should not be rendered. If none is shown the court shall pronounce judgment against the defendant.” This statute has been interpreted to apply to the sentencing proceeding. See, e.g., State v. Valladarez, 288 Kan. 671, 687, 206 P.3d 879 (2009). Nevertheless, a different redding could be given in light of K.S.A. 2008 Supp. 22-3426(a) because it differentiates between the judgment and the sentence by separating the two terms with a disjunctive and by placing them separately in a series of items to be recorded in a journal entry, stating in part: “When judgment is rendered or sentence of imprisonment is imposed, upon a plea or verdict of guilty, a record thereof shall be made upon the journal of the court, reflecting, if applicable, conviction or other judgment, the sentence if imposed, and the commitment.” (Emphasis added.) We need not resolve this ambiguity, however, because the fees at issue are costs, and K.S.A. 22-3803 specifically addresses the manner in which costs are to be assessed, stating in part: “At the conclusion of each criminal case the court shall tax the costs against the party responsible for payment and shall cause to be delivered to such responsible party a complete statement of the costs, specifying each item of service and the fee assessed for such service.” This statute, which was not cited by any of tire parties in these consolidated appeals or discussed by either Court of Appeals panel, allows the parties to be notified of the taxation of costs through a statement served at the end of all proceedings in the criminal case, i.e., after the sentencing and any other proceeding. ■K.S.A. 22-3803 runs counter to Phillips’ and Wenzel’s argument that the costs must be imposed in open court. When statutes are in conflict, we often state that “ ‘[gjeneral and special statutes should be read together and harmonized whenever possible, but to tire extent a conflict between them exists, the special statute will prevail unless it appears the legislature intended to make the general statute controlling.’ [Citation omitted.]” Pieren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 89, 106 P.3d 492 (2005). Here, K.S.A. 22-3803 is the specific statute, and it does not require the defendant’s presence or the imposition of costs at sentencing. Rather, a written statement, which could include a journal entry, may serve as the statement of costs that are being taxed against a party in a criminal case. Consequently, we find no merit in Phillips’ and Wenzel’s arguments that K.S.A. 22-3405 and K.S.A. 2008 Supp. 22-3424(a) mandate that a felony docket fee, booking fee, BIDS attorney fee, or a BIDS application fee must be imposed in open court to be valid. Due Process Even so, Phillips and Wenzel argue due process entitles a criminal defendant to be present when these various fees are imposed. The Court of Appeals panel in Wenzel rejected this due process argument by finding that a hearing was not required if statutes mandated that a court enter an order. The panel substantiated the point by providing an example of case law relating to the imposition of consecutive and concurrent sentences, stating: “[W]hen a district judge has the discretion to determine whether sentences will be served concurrently or consecutively, if the judge fails to order consecutive sentences at the sentencing hearing, that cannot be done later by the stroke of a pen on the journal entry. State v. Jackson, 262 Kan. 119, 140, 936 P.2d 761 (1997). On the other hand, when a district judge lacks discretion in a sentencing decision, the failure to announce some aspect of the sentence as to which the judge had no discretion may be corrected later. Thus, in Love [v. State, 280 Kan. 553, 560, 124 P.3d 32 (2005)], when the district judge failed to announce that the sentences’ were to be served consecutively — but a statute clearly required that they must be — the judge could enter a later journal entry correcting the matter. 280 Kan. at 560-63.” Wenzel, 39 Kan. App. 2d at 199. Other courts have recognized the same distinction. The Florida Court of Appeals, in a case considering the same issue as presented here, explained the rationale for the distinction noting that “technically a defendant is on notice that all applicable mandatory costs will be imposed by virtue of the rendition of judgment and pronouncement of sentence.” Reyes v. State, 655 So. 2d 111, 116 (Fla. App. 1995), superceded by statute as stated in Cook v. State, 896 So. 2d 870, 30 (Fla. App. 2005). Applying this rationale, we will consider whether the various costs in this case required findings by the judge. Docket and Booking Fees Historically, court costs have been viewed as mandatory unless there is a clear indication of legislative intent otherwise. See Thomson, 188 Kan. at 177; Granville, 26 Kan. 158, Syl. ¶ 1. Consistent with this general rule, the statutes relating to docket fees and booking fees provide those fees “shall” be assessed against the defendant upon conviction. K.S.A. 22-3801; K.S.A. 2008 Supp. 12-16,119. Furthermore, the district judge does not have discretion as to the amount of these fees; the booking fee is set by resolution of a local unit of government and the docket fee is set by statute. K.S.A. 2008 Supp. 12-16,119 (booking fees shall be paid “if the board of county commissioners or . . . the governing body of a city, where a city operates a detention facility, votes to adopt such a fee as a booking or processing fee for each complaint”; capping amount at $45); K.S.A. 2008 Supp. 28-172a (establishing docket fees). Consequently, a judge does not need to make findings before taxing as costs a docket fee under K.S.A. 2008 Supp. 28-172a or a booking fee under K.S.A. 2008 Supp. 12-16,119. BIDS Attorney Fees In contrast, the legislature granted judges considerable discretion in determining the amount of BIDS attorney and application fees. Although a cap is set on both fees — an amount determined by the severity of the crime for the attorney fees and $100 for the application fee — the judge is given discretion to waive part or all of the fee. In Robinson, this court determined that the language of K.S.A. 22-4513, which states that BIDS attorney fees “shall be taxed against the defendant,” makes consideration of the fees mandatory. 281 Kan. at 543. However, discretion as to the amount of the fee to impose is granted by K.S.A. 21-4603d(i), which provides in part: “In determining the amount and method of payment of such sum, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of such sum will impose. A defendant who has been required to pay such sum and who is not willfully in default in the payment thereof may at any time petition the court which sentenced the defendant to waive payment of such sum or any unpaid portion thereof. If it appears to the satisfaction of the court drat payment of the amount due will impose manifest hardship on the defendant or tire defendant’s immediate family, the court may waive payment of all or part of the amount due or modify the method of payment.” Although this provision requires consideration of a defendant’s financial ability, it does not specify when that consideration must occur. In fact, no statute requires the consideration of a defendant’s financial resources to occur at sentencing. Nevertheless, in Robinson, we concluded the practical effect of the statutory provisions relating to BIDS attorney fees was that a “sentencing court assess ing fees to reimburse [BIDS] . . . must consider on the record at the time of assessment the financial resources of the defendant and the nature of the burden that payment of the fees will impose.” 281 Kan. 538, Syl. ¶ 1. Robinson further clarified that the sentencing court must explicitly state on the record how those factors have been weighed in the court’s decision. 281 Kan. at 546; see State v. Drayton, 285 Kan. 689, 716, 175 P.3d 861(2008). The requirements specified in Robinson will not be met if BIDS attorney fees are only assessed via a journal entry of judgment. Nevertheless, because the assessment of BIDS attorney fees is not punitive and not a part of the sentence, the failure to announce the amount of the fee at the sentencing does not mean the fees can never be assessed against a defendant. See Robinson, 281 Kan. at 547. Instead, a remand is appropriate for reconsideration of the payment of BIDS attorney fees. As a result, numerous cases have been remanded to district courts for further findings where the judges at sentencing ordered BIDS attorney fees without consideration of the defendant’s financial resources or the burden the payment would impose. See, e.g., State v. Johnson, 286 Kan. 824, 190 P.3d 207 (2008); State v. Stevens, 285 Kan. 307, 172 P.3d 570 (2007). Here, the attorney fee argument is stated only by Wenzel whose defense counsel asked at the sentencing hearing that BIDS fees be waived. The district judge made no mention of BIDS attorney fees at the hearing, meaning there were no findings on the record concerning Wenzel’s financial resources or the burden the payment will impose. Therefore, the Court of Appeals concluded correctly that the fees should be vacated and the case should be remanded to the district court in order for the district judge to make the necessary findings on the record. BIDS Application Fee Similar to the BIDS attorney fee statutes, the BIDS application fee statute, K.S.A. 22-4529, provides in relevant part that “[i]f it appears to the satisfaction of the court that payment of the application fee will impose manifest hardship on the defendant, the court may waive payment of all or part of the application fee.” See also K.S.A. 21-4603d(a)(9) (disposition at sentencing “may” include BIDS administrative fee “unless waived by the court”). Both Phillips and Wenzel argue that the judge in their respective cases should have considered at the sentencing hearings whether payment of the $100 application fee would impose a manifest hardship upon them. The defendants’ position was rejected in Hawkins, where this court held a criminal defendant’s ability to pay the BIDS application fee is to be considered by the district court at the time the defendant submits the application for appointed counsel. Hawkins, 285 Kan. at 852. No findings need to be made at sentencing for the BIDS application fee to be a valid judgment. The record on appeal shows that Phillips’ ability to pay was considered by the district judge at the time his counsel was appointed. This is evidenced on the BIDS form authorized by K.A.R. 105-4-3, which includes the financial affidavit of the defendant on the top part of the form and the court’s order on the bottom. The district judge checked the box ordering payment of the $100 application fee and did not check the box labeled “partially indigent, able to pay $__” It is not as clear in Wenzel’s case, however, whether his ability to pay was properly considered by the district judge. The record shows that the judge checked a box on Wenzel’s application for appointed counsel when the court approved the appointment of defense counsel, but the judge did not check any box indicating that the BIDS application fee was to be collected. Perhaps this was meant to indicate that the fees were not to be collected due to manifest hardship, but there was no apparent finding of a waiver to that effect on Wenzel’s application. Wenzel points out that his defense counsel requested at the sentencing hearing that “BIDS fees” be waived. The district judge obviously did not grant this request with respect to either the application fee or attorney fees, since both the BIDS application fee and BIDS attorney fees were assessed in the journal entry of judgment. Yet instead of malting findings and clarifying its earlier order in Wenzel’s application for appointed counsel, the district judge failed to rule on Wenzel’s request for waiver during the sentencing hearing. Because in Wenzel’s case the district judge failed to order either the payment or waiver (in part or in full) of the application fee at the time defense counsel was appointed and it is impossible from the record to determine any district judge-made findings on the matter, the Court of Appeals correctly concluded that a remand to the district court is necessary to obtain a finding regarding whether to waive the BIDS application fee for manifest hardship. It should be emphasized, however, that under normal circumstances, where the district judge has checked the appropriate box on the application for appointed counsel indicating that full payment of the application fee is required, partial payment is required, or payment is waived (or has otherwise indicated its findings on the application), the district judge’s failure to orally announce the BIDS application fee at the sentencing hearing is inconsequential under the rationale of Hawkins. Since the order for the BIDS application fee is to be made at the time the defendant applies for appointed counsel, a subsequent order for the same fee at the sentencing hearing would be redundant. Accordingly, there is generally no need to require the district judge to do so. The absence of an oral announcement of the BIDS application fee at the sentencing hearing does not, per se, require a reversal of the fee imposed in a defendant’s journal entry of judgment. We conclude this opinion by urging district judges to announce the imposition of costs at the sentencing hearing. Doing so is a preferred practice. Nevertheless, the failure to do so will not void an order to pay costs. Those portions of the Court of Appeals decision in Phillips affirming the district court’s imposition of a docket fee, booking fee, and BIDS application fee are affirmed. Those portions of the district court’s decision are affirmed. Those portions of the Court of Appeals decision in Wenzel vacating the BIDS application fee and BIDS attorney fees and remanding to the district court with instructions to make the appropriate findings and determinations of whether those fees should be waived in light of those findings are affirmed. Those portions of the district court’s decision are vacated, and the case is remanded to the district court with directions.	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The opinion of the court was delivered by Luckert, J.: Gerald E. Gonzales was convicted of one count of aggravated indecent liberties with a child under the age of 14 contrary to K.S.A. 2006 Supp. 21-3504(a)(3), one count of aggravated indecent liberties with a child contrary to K.S.A. 2006 Supp. 21-3504(a)(1) (sexual intercourse with a child who is 14 or more years of age but less than 16 years of age), and single counts of rape and violation of a protective order. For his conviction of aggravated indecent liberties with a child under the age of 14, Gonzales received a sentence of life imprisonment without the possibility of parole for 25 years and postrelease supervision for life pursuant to K.S.A. 2006 Supp. 21-4643, commonly known as Jessica’s Law. On appeal, Gonzales seeks to reverse his convictions and vacate his hard 25 life sentence. In seeking to reverse his convictions, Gonzales argues he was denied a fair trial because his counsel was ineffective. Alternatively, Gonzales focuses on his conviction and sentence under Jessica’s Law, arguing: (a) the trial court lacked jurisdiction to sentence him under K.S.A. 2006 Supp. 21-4643 because the charging instrument failed to allege that he was over the age of 18, (b) a defendant’s age at the time of the offense is an element of the crime of indecent liberties with a child which the trial court failed to include in the jury instructions, violating his constitutional rights, and (c) his disproportionate sentence violates the right against cruel or unusual punishment under § 9 of the Kansas Constitution Bill of Rights or, similarly, the Eighth Amendment to the United States Constitution. We affirm the district court’s denial of Gonzales’ request for a new trial, finding that substantial competent evidence supports the district court’s findings of fact and the court’s conclusion that trial counsel acted within the wide range of reasonable professional judgment was not erroneous. Nevertheless, we vacate Gonzales’ sentence under Jessica’s Law based on this court’s recent dispositive holding in State v. Bello, 289 Kan. 191, 211 P.3d 139 (2009) (2009), which concluded that the defendant’s age must be determined by a juiy. We conclude, however, that Gonzales was validly convicted of aggravated indecent liberties with a child under the age of 14 and remand for resentencing pursuant to the Kansas Sentencing Guidelines Act (KSGA). Facts and Procedural Background The State’s complaint against Gonzales was amended twice and ultimately charged him with four counts: Count I — one count of aggravated indecent liberties with a child in violation of K.S.A. 2006 Supp. 21-3504(a)(l), by engaging in sexual intercourse with C.M., a 14-year-old child, on or between January 1, 2006, to November 30, 2006; Count II — one count of aggravated indecent liberties with a child in violation of K.S.A. 2006 Supp. 21-3504(a)(3)(A), by lewdly fondling or touching N.M., a child under 14 years of age, on or between August 1, 2006, to November 30, 2006; Count III — one count of rape in violation of K.S.A. 2005 Supp. 21-3502(a)(2), by engaging in sexual intercourse with C.M., a child under 14 years of age, on or between August 1, 2004, to January 1, 2006; Count IV — one count of unlawfully, knowingly, or intentionally violating a protective order issued by the district court in violation of K.S.A. 21-3843(a)(l), by contacting Anna Martinez by telephone the night before the preliminary hearing. The two victims in Counts I, II, and III were the daughters of Martinez, with whom Gonzales had a romantic relationship. He lived with Martinez and her family during the time of the alleged incidents. One of die victims, C.M., suffered from cerebral palsy, attended special education classes at school and, according to her mother, was mentally and emotionally “developmentally slow.” C.M.’s younger sister, N.M., was the other victim. At trial, the jury heard evidence of the two victims’ statements to investigating officers and also heard the victims testily. Highly summarized, C.M. told officers that Gonzales had sex with her on her mother’s bed in excess of 15 times over a 2-year period. The other victim, N.M., told police that Gonzales had forced her to “kiss him nasty.” N.M. described that Gonzales would put her up against a door, push up her shirt, and feel her breasts with his hands and also Mss them. When asked where this happened, N.M. said sometimes it happened in her room and sometimes in her mother’s room. And it always happened when her mom was at work and before school. The jury also heard police testily regarding their interview of Gonzales. During his interview, Gonzales denied having any sexual contact with N.M. and initially denied engaging in sexual acts with C.M. Ultimately, he admitted having sexual contact with C.M. but claimed there was one incident and that it was consensual. Gonzales told detectives that C.M. was very flirtatious with him after her mother would leave the house or when he and C.M. were alone together. Gonzales said one Saturday morning, approximately 6 months before his arrest, C.M. approached him in the living room, removed her shorts, grabbed his penis, and tried to get him aroused. Gonzales indicated that he tried to have sex with C.M., but because he did not have an erection, “I couldn’t put it in, man.” So Gonzales told C.M. to stop and go take a shower. The jury convicted Gonzales as charged. Before sentencing, defense counsel filed a motion for new trial based on insufficient evidence, which the district court denied. In addition, Gonzales filed a pro se supplemental motion for new trial based on multiple allegations of ineffective assistance of trial counsel. The district court appointed new counsel to represent Gonzales for purposes of sentencing and held a hearing on the pro se supplemental motion. After considering the evidence and the testimony of Gonzales’ trial counsel, the district court found that counsel’s performance “fell within the wide range of reasonable professional assistance” and denied Gonzales’ request for a new trial. The court proceeded immediately to sentencing, and Gonzales’ newly appointed defense counsel offered an oral motion seeking a downward durational or dispositional departure sentence applicable to the aggravated indecent liberties conviction involving the lewd fondling and touching of N.M. This offense (Count II), in violation of K.S.A. 2006 Supp. 21-3504(a)(3)(A), subjected Gonzales to a presumptive life sentence with a mandatory minimum of 25 years’ imprisonment under K.S.A. 2006 Supp. 21-4643(a)(l)(C). The court denied the departure motion. Gonzales filed a timely appeal. This court’s jurisdiction is under K.S.A. 22-3601(b)(l) (off-grid crime; life sentence). I. Motion for New Trial Gonzales contends that his trial counsel provided constitutionally defective representation when counsel failed to provide substantial communication with Gonzales, failed to adequately cross-examine victim C.M., failed to consider Gonzales’ suggestions in support of his defense, and failed to review police reports with Gonzales. He contends that these failures by counsel were so prejudicial he was deprived of a fair trial. Twice Gonzales alerted the district court to his concerns about his trial counsel. After the preliminary hearing, Gonzales filed a pro se motion to dismiss counsel, arguing that his attorney was working against him. After holding a hearing, the court denied Gonzales’ motion and found that he presented no evidence showing his attorney was not working as his advocate. Then after trial, Gonzales filed a pro se supplemental motion for new trial based on allegations of ineffective assistance of trial counsel. The court held a posttrial hearing on Gonzales’ pro se supplemental motion, at which Gonzales was represented by newly appointed counsel. After hearing arguments and considering testimony from Gonzales and his trial counsel, the court ordered the parties to return the following week for a ruling on the matter. One week later, at the motions and sentencing hearing, the district court decided to treat Gonzales’ pro se supplemental filing as a K.S.A. 60-1507 motion. After making thorough and specific findings regarding each of Gonzales’ allegations of ineffective assistance of trial counsel, which will be discussed further below, the court concluded that “the performance of [trial counsel] fell within the wide range of reasonable professional assistance.” Also, the district court concluded that “it cannot be said that the performance of [trial counsel] undermined the adversarial process such that a just result was not obtained.” Consequently, the court denied Gonzales’ motion. A. General Standards The Sixth Amendment to the United States Constitution guarantees in “all criminal prosecutions” that “the accused shall enjoy the right ... to have the Assistance of Counsel for his defense.” This court has explained that the right to counsel guaranteed by this provision is the right to effective assistance of counsel. Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985) (adopting the standards set forth in Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052, [1984]); see State v. Overstreet, 288 Kan. 1, 20, 200 P.3d 427 (2009); Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868 (2007). To support a claim of ineffective assistance of counsel, a defendant must demonstrate that (1) counsel’s performance was deficient and (2) counsel’s deficient performance was sufficiently serious to prejudice the defense and deprive the defendant of a fair trial. Thus, the “benchmark forjudging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. [Citations omitted.]” Bledsoe, 283 Kan. at 90. In Bledsoe, this court explained in detail the two steps in the ineffective assistance of counsel analysis, stating: “The first prong of the test for ineffective assistance of counsel requires a defendant to show that counsel’s representation fell below an objective standard of reasonableness, considering all the circumstances. Judicial scrutiny of counsel’s performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. We must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. [Citation omitted.] “Once a defendant has established counsel’s deficient performance, the defendant also must establish prejudice by showing that there is a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. [Citation omitted.]” 283 Kan. at 90-91. In recognizing the presumption that counsel’s conduct is reasonable, in Bledsoe we noted the distinction between decisions that are to be made by a criminal defendant and the areas of trial strategy that are left to the professional judgment of the attorney, stating: “[Cjertain decisions relating to the conduct of a criminal case are ultimately for the accused: (1) what plea to enter; (2) whether to waive a jury trial; and (3) whether to testify. Others are ultimately for defense counsel. The decisions on what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike, what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his or her client.” 283 Kan. at 92. See also Monda v. State, 285 Kan. 826, 837-38, 176 P.3d 954 (2008) (courts will defer to counsel on matters of trial strategy). Nevertheless, “[mjere invocation of the word "strategy’ does not insulate the performance of a criminal defendant’s lawyer from constitutional criticism,” especially “ "when counsel lacks the information to make an informed decision due to inadequacies of his or her investigation.’ ” Wilkins v. State, 286 Kan. 971, 982, 190 P.3d 957 (2008). B. Standard of Review In this case, the record reflects that the district court was aware of and applied these general standards in making findings of fact based on the evidence presented. When, as in the present case, an evidentiary hearing has been conducted on a claim of ineffective assistance of counsel, an appellate court determines whether the factual findings of the district court are supported by substantial competent evidence and whether those findings are sufficient to support its conclusions of law. The court’s legal conclusions are reviewed de novo. Overstreet, 288 Kan. at 24. C. Communication In arguing that the district court erred, Gonzales first suggests that his trial counsel’s assistance was ineffective because there was a lack of communication between his trial counsel and himself. However, many of Gonzales’ arguments could be construed to fall under the category of dissatisfaction with his counsel’s trial strategy given the outcome of his case. At the hearing on Gonzales’ pro se supplemental motion, Gonzales testified that his trial counsel failed to communicate with him in that she only met with him three or four times before the trial. Gonzales testified: “The lack of communication . . . became clear to me when I tried to explain to [trial counsel] my innocence. She insisted on the plea, without hearing any of my facts. I tried to explain to her 20 years for a crime I did not commit is not negotiable. She still . . . insisted on a plea, like, if she was doing me a favor. “. . . [A]nd she wanted me to waive my rights, but I refused to waive my rights. “I asked her about the defense, but she had another defense for me.” When asked if Gonzales ever had an opportunity to discuss the prosecution’s case with his trial counsel, Gonzales testified: “Yes. I tried to speak to her about it, but she already had it set in her mind what she was going to do beforehand.” Gonzales argues that he never understood his defense, but his testimony indicates otherwise. At the ineffective assistance of counsel hearing, Gonzales indicated that his trial counsel took the case to trial because Gonzales wanted to do so and their defense plan was to attack the victims’ credibility and to show a lack of physical evidence supporting the charged crimes. Gonzales does not identify another defense his trial counsel supposedly failed to discuss with him. “Mere conclusory statements” are not sufficient to satisfy this burden of proof. State v. Moody, 35 Kan. App. 2d 547, Syl. ¶ 10, 132 P.3d 985, rev. denied 282 Kan. 794 (2006); see State v. Jackson, 255 Kan. 455, 463, 874 P.2d 1138 (1994). Trial counsel testified regarding her communications with Gonzales and indicated that she met with him several times over the course of his legal representation. The district court observed that counsel submitted her case log, which listed seven pretrial contacts with Gonzales — three jail visits and four court appearances. The court further noted that the court appearances consisted of representation at the preliminary hearing and three pretrial motion hearings, and trial counsel testified that she conferred with Gonzales before and after the court hearings. Also, counsel testified that she told Gonzales of the type of plea she thought the State might accept, so he could make an informed decision. He refused to enter a plea, so they proceeded with a jury trial. On recross-examination, trial counsel testified regarding the difficulty she had in explaining strategy concerns with Gonzales: “It was very difficult, in all honesty, in — in meeting with Mr. Gonzales. He has a very focused, land of one-track mind, sounds derogatory, and I don’t mean it that way, but he’s very focused, so he would focus in on certain things. Getting him off of that track was about impossible.” The district court found no merit to Gonzales’ allegation that his trial counsel did not prepare a defense for him. The court found the evidence showed the opposite. And the court pointed to the fact that trial counsel prepared a motion in limine and a motion to suppress Gonzales’ statement. Substantial competent evidence supports the district court’s findings. D. Witness Suggestions Gonzales also contends his trial counsel was ineffective for failing to consider the witnesses he suggested in support of his defense. He highlights this attack by pointing to a potential breakdown in communication shown by a conflict in the hearing testimony of Gonzales and his trial counsel regarding whether Gonzales asked her to subpoena an attorney who was representing Gonzales in a separate child custody matter. At the hearing, Gonzales testified that he had instructed his trial counsel to subpoena his family law attorney to testify in his defense. Gonzales indicated that he had wanted evidence admitted of an occasion when Martinez allegedly tried to interfere with the custodial rights of his children from a previous relationship by telling Gonzales’ family law attorney not to accept Gonzales’ calls (presumably due to the allegations in the present case). Gonzales also wanted his family law attorney to testify regarding the protection from abuse (PFA) order that Martinez acquired after Gonzales was taken into custody in this case. According to Gonzales, his attorney was present at the time the PFA order was filed and allegedly commented to Gonzales “the things that [Martinez] was doing wasn’t right.” Gonzales’ trial counsel testified at the hearing that Gonzales never specifically mentioned his family law attorney’s name. Nor did Gonzales ever state that he wanted his family law attorney to testify at trial. The district court found counsel’s testimony to be credible. Gonzales also complains that he wanted his trial counsel to subpoena his mother to testify on his behalf at trial, but counsel did not do so. According to Gonzales, his mother would have attacked Martinez’ credibility. Gonzales testified at the hearing that his mother lived across the street from him and Martinez at their previous address on Clayton Street and had already known Martinez from living in the neighborhood. Gonzales also indicated that during the time they lived on Clayton, Martinez was studying at home and did not have a job. He suggested that his mother would testify that Martinez was home during the day while Gonzales worked, which would lead to a conclusion that he had no time to have sexual contact with the girls. Gonzales also testified at the hearing that he and Martinez always “left together” from the Clayton residence. Gonzales’ trial counsel testified that she spoke to Gonzales’ mother several times, and counsel’s investigator, a former police officer, also spoke to her. However, trial counsel opined that as a fact witness, Gonzales’ mother had nothing useful to add to the defense. She was not present during the sexual contact and would merely attack the character of Martinez. Further, Martinez’ and Gonzales’ schedules had changed after they moved from Clayton. The district court found that Gonzales’ trial counsel, after careful and thorough investigation, made a well-reasoned decision concerning whether to call Gonzales’ mother as a defense witness. Another witness complaint involves the nurse who testified about her physical examination of C.M. after the reported sexual activity. Gonzales contends that his trial counsel should have cross-examined the nurse about a possible discrepancy in C.M.’s medical records regarding whether her hymen had ruptured. One doctor had reported that C.M.’s hymen had ruptured, and the strategy of Gonzales’ trial counsel, which was followed, was to keep that information out of the trial. Gonzales’ trial counsel thought the information would be damaging to Gonzales’ defense. Instead, the nurse who found no physical injury to C.M. ultimately testified at trial. The district court found that Gonzales’ trial counsel talked to him about this matter, provided him with discovery materials, and then prepared his defense. In part, the district court’s findings on these matters are based on the court’s assessment of credibility. An appellate court does not reweigh evidence, substitute its evaluation of evidence for that of the district court, or pass on credibility of witnesses. State v. Thomas, 288 Kan. 157, 161, 199 P.3d 1265 (2009). Based on the evidence presented, substantial competent evidence supports the district court’s finding that the decisions regarding whether to call certain individuals as defense witnesses were based on counsel’s investigation. Further, the district court correctly concluded the decisions were matters of reasonable strategy. E. Cross-examination of C.M. Another point of contention for Gonzales regarding his trial counsel is the cross-examination of C.M. He contends that his trial counsel failed to point out the discrepancies between C.M.’s preliminary hearing testimony and her trial testimony. But Gonzales fails to specify with particularity the discrepancies of which he complains. He simply makes the blanket statement that counsel “failed to point out the discrepancies.” At the ineffective assistance of counsel hearing, Gonzales’ trial counsel was asked on cross-examination what attempts she made to point out conflicts between the preHminary hearing testimony and the trial testimony. The following colloquy took place: “A. That was ... a little tricky. . . . [I]n all honesty, if I would change something about this trial, that would be it. Unfortunately, specifically with [C.M.] and her low kind of level of functioning, I felt that attacking her in front of the jury with the [prehminary] transcript was not something that was going to endear Mr. Gonzales and I to the jury. And I did not pursue that as much ... as a trial strategy. “Q. But looking back, perhaps you should have? “A. It couldn’t have hurt, obviously. At the time I was hoping to forestall the position that he is in right now, being found guilty of everything. But apparently, it could not have hurt, [in] hindsight.” On re-cross-examination, Gonzales’ trial counsel confirmed that she did cross-examine C.M., but simply did not get aggressive with pointing out inconsistencies. And counsel indicated that she was a little concerned about C.M.’s ability to read a transcript and that this potential problem would make the jury more sympathetic towards C.M. A review of C.M.’s cross-examination shows that Gonzales’ trial counsel did attempt to display for the jury that C.M. might have had an ulterior motive for malting accusations against Gonzales. The theory was that C.M. was unhappy with news that Gonzales and her mother were going to many, and when C.M. had been told the news she responded that she would do anything to stop her mother from getting married. The district court found that Gonzales’ trial counsel competently cross-examined the State’s witnesses “and attempted to attack the credibility of the two victims.” It also observed that trial counsel showed there was a lack of physical evidence to corroborate the victims’ allegations. Regarding C.M. in particular, the court stated: “[Trial counsel] testified that she made the decision not to aggressively point out every inconsistency in the transcript, based on her training and experience of trying child sex cases. [She] testified she considered the fact that [C.M.] was a low-level functioning child who might not be able to read the transcript. Therefore, she opined that an aggressive Cross-Examination with the transcript would only engender sympathy for the child. In the Court’s opinion, [trial counsel] made a sound, well-reasoned decision, based on her training and experience with child sex victims.” Generally, whether and how to conduct the examination of a witness is a matter of strategy left to trial counsel’s reasonable pro fessional judgment. See Wilkins, 286 Kan. at 982; State v. Gleason, 277 Kan. 624, 647, 88 P.3d 218 (2004). F. Police Reports Finally, Gonzales argues that his trial counsel was ineffective for failing to thoroughly review the police reports with him and for advising him that he should not testify in his own defense at trial. At the ineffective assistance of counsel hearing, Gonzales acknowledged that he received copies of the police reports from his trial counsel, and he was aware that he could ask her questions about the reports. Gonzales’ trial counsel testified that she and Gonzales “went over questions he had regarding the police reports at several conferences.” On appeal, Gonzales fails to state with specificity what police report details he believes trial counsel should have discussed with him but failed to do. Gonzales argues that he wanted to testify at trial, but his counsel advised against it. Gonzales’ trial counsel testified at the ineffective assistance of counsel hearing that she did not think it was a good idea for Gonzales to open himself up to attack by the prosecutor, but she also informed Gonzales that it was his decision to malee. Trial counsel testified that she did not conduct a mock cross-examination with Gonzales and that she generally does not perform mock cross-examinations with clients because she does not want them to sound “coached” if they testify before the jury. The district court pointed out that Gonzales had been advised on the record of his right to testify or not to testify. And he was also informed that it was his decision. Gonzales decided not to testify. Under the circumstances, the district court determined that the performance of Gonzales’ trial counsel fell within the wide range of reasonable professional assistance. In addition, the district court found: “[I]t cannot be said that the performance of [trial counsel] undermined the adversarial process such that a just result was not obtained.” G. Conclusion In summary, there was substantial competent evidence to support the factual findings of the district court and those findings support the district court’s conclusion of law that Gonzales’ trial counsel acted within the wide range of reasonable professional judgment. The district court did not err in denying Gonzales’ request for a new trial based on a claim of ineffective assistance of trial counsel. II. Defendant’s Age In addition, Gonzales contends that a defendant’s age is an essential element of an aggravated crime under K.S.A. 2006 Supp. 21-4643(a)(l). Because neither the charging document in this case nor the jury instructions addressed the fact that Gonzales was 18 years of age or older at the time he committed the offense of aggravated indecent liberties with a child under the age of 14, Gonzales contends that his conviction must be reversed and his sentence vacated. Gonzales attacks this matter from several different angles, arguing that the district court lacked jurisdiction to sentence him under K.S.A. 2006 Supp. 21-4643, that his conviction for aggravated indecent liberties with a child is invalid, that his sentence must be vacated because the juiy should have been instructed regarding the defendant’s age and was required to find beyond a reasonable doubt that the defendant was 18 years of age or older at the time the crime was committed, that his sentence is cruel or unusual, and that the district court erred in denying his motion for departure. The common thread to Gonzales’ argument that his conviction and sentence are invalid is that a defendant’s age of 18 years or older is an essential element of the crime of aggravated indecent liberties with a child under the age of 14 when that crime is charged as an off-grid offense. A. Standard of Review Our review is unlimited where, as in this case, appellate arguments implicate concerns relating to statutory and constitutional interpretation. State v. Bello, 289 Kan. 191, 211 P.3d 139 (2009) (2009), slip op. at 6; State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008) (statutory interpretation is question of law subject to de novo review); State v. Allen, 283 Kan. 372, 374, 153 P.3d 488 (2007) (constitutionality of sentencing statute is question of law subject to unlimited review). Whether a complaint or information is sufficient to confer subject matter jurisdiction is also a question of law and, therefore, the same unlimited standard of review applies. State v. Gracey, 288 Kan. 252, 254, 200 P.3d 1275 (2009); State v. McElroy, 281 Kan. 256, 261, 130 P.3d 100 (2006). B. Defective Complaint The Sixth Amendment to the United States Constitution gives an accused the right to “be informed of the nature and cause of the accusation”; the Kansas Constitution Bill of Rights, § 10 mandates that “the accused shall be allowed ... to demand the nature and cause of the accusation against him.” Generally, if a complaint fails to include an essential element of a crime charged, it is “fatally defective, and the trial court lacks jurisdiction to convict the defendant of the alleged offense.” State v. Moody, 282 Kan. 181, 197, 144 P.3d 612 (2006). Gonzales first observes that under K.S.A. 2006 Supp. 21-4643(a)(1), subject to certain exceptions inapplicable to this case, “a defendant who is 18 years of age or older and is convicted of the following crimes committed on or after July 1, 2006, shall be sentenced to a term of imprisonment for life with a mandatory minimum term of imprisonment of not less than 25 years.” Among the enumerated crimes is aggravated indecent liberties with a child under the age of 14, a crime for which Gonzales was convicted. Gonzales contends that K.S.A. 2006 Supp. 21-4643 essentially establishes an aggravated form of the enumerated crimes such that the defendant’s age (18 years or older) becomes an essential element which must be proved in order to obtain a conviction of that aggravated crime. With that rationale in mind, Gonzales argues that the district court lacked jurisdiction to sentence him for any crime under K.S.A. 2006 Supp. 21-4643 because that statute requires the offender to be 18 years of age or older, and Count II, which involved aggravated indecent liberties with a child under the age of 14, in violation of K.S.A. 2006 Supp. 21-3504(a)(3), failed to allege that Gonzales was 18 years of age or older at the time he committed the offense. Gonzales clarifies that he is not claiming that the charging document was defective. In other words, he does not dispute the validity of the complaint itself. Instead, he asserts that the district court did not have jurisdiction because the State failed to charge a “valid crime” under K.S.A. 2006 Supp. 21-4643. Gonzales basically relies on the well-known rule, which states: “ ‘[I]f a crime is not specifically stated in the information or is not a lesser included offense of the crime charged, the district court lacks jurisdiction to convict a defendant of the crime, regardless of the evidence presented.’ ” State v. Belcher, 269 Kan. 2, 8, 4 P.3d 1137 (2000) (quoting State v. Horn, 20 Kan. App. 2d 689, Syl. ¶ 1, 892 P.2d 513, rev. denied 257 Kan. 1094 [1995]). Simply put, according to Gonzales’ reasoning, if the defendant’s age is an essential element of the crime but is not addressed in the charging document, then the State fails to charge the defendant with the aggravated sexual offense and, consequently, the defendant cannot be sentenced for any offense. The elements of aggravated indecent liberties with a child are contained in K.S.A. 21-3504, which provides in part: “(a) Aggravated indecent liberties with a child is: “(3) engaging in any of the following acts with a child who is under 14 years of age: “(A) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both; “(c) Except as provided further, aggravated indecent liberties with a child as described in subsections (a)(1) and (a)(3) is a severity level 3, person felony. . . . When the offender is 18 years of age or older, aggravated indecent liberties with a child as described in subsection (a)(3) is an off-grid person felony.” The sentences for off-grid crimes are set out in K.S.A. 21-4706 and provides in part: “(d) As identified in K.S.A. . . . 21-3504 . . . and amendments thereto, if the offender is 18 years of age or older and the victim is under 14 years of age, such violations are off-grid crimes for the purposes of sentencing. Except as provided in K.S.A. 21-4642, and amendments thereto, the sentence shall be imprisonment for life pursuant to K.S.A. 21-4643, and amendments thereto.” This court recently upheld the validity of a charging document— and the district court’s jurisdiction — under nearly identical facts in State v. Gracey, 288 Kan. 252. In Gracey, the defendant argued the charging document was defective for fading to allege he was 18 years of age or older when he committed the crime of aggravated indecent liberties with a child under the age of 14. We rejected his argument. In reaching this conclusion, we noted that the test used to evaluate the sufficiency of the charging document depends upon when the issue was first raised. Where, as in this case, the charging document is challenged for the first time on appeal, the defendant must show that the alleged defect either: (1) prejudiced the defendant’s preparation of a defense; (2) impaired the defendant’s ability to plead the conviction in any subsequent prosecution; or (3) limited the defendant’s substantial rights to a fair trial. Gracey, 288 Kan. at 254; see State v. Hall, 246 Kan. 728, 761, 793 P.2d 737 (1990), overruled in part on other grounds by Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003); see also State v. McElroy, 281 Kan. 256, 261, 130 P.3d 100 (2006) (applying the post-Hall analysis); State v. Shirley, 277 Kan. 659, 661, 89 P.3d 649 (2004) (same). Applying this analysis in Gracey, we determined the charging deficiency, if any, did not invalidate Gracey’s conviction. By listing Gracey’s date of birth in the caption, the document averred that he was over the age of 18 and it also stated at the bottom that the charge was for an off-grid felony. “The validity of a charging instrument is to be tested by reading the document in its entirety, and the elements of the offense may be gleaned from the document as a whole.” Gracey, 288 Kan. at 256 (citing McElroy, 281 Kan. 256, Syl. ¶ 3). Without stating specifically whether the defendant’s age was an element of the crime, but implying it to be so, Gracey determined the document specified all the “elements” of aggravated indecent liberties with a child, and under the circumstances, Gracey was adequately informed of both the crime charged and the penalty. Further, Gracey did not contend that the preparation of his defense or his rights to a fair trial were impaired, and the conviction was not shown to affect any subsequent prosecution. Based on our limited standard of review, we held the sentencing court did not err in applying K.S.A. 21-4643. Similar to the situation in Gracey, the complaint against Gonzales listed his date of birth, stated the charge was for an off-grid person felony, and otherwise specifically listed the elements of aggravated indecent liberties with a child under the age of 14. Gonzales does not contend that the preparation of his defense or his rights to a fair trial were impaired. Nor has Gonzales shown that his conviction for aggravated indecent liberties with a child under the age of 14 affected any subsequent prosecution. Consequently, to the extent Gonzales alleges a deficiency in the complaint for the first time on appeal, Gracey leads us to conclude that, under the circumstances, Gonzales was adequately informed of both the crime charged and the penalty. Thus, based on the facts and our limited standard of review, the failure to specifically allege in the complaint that Gonzales was 18 years of age or older did not invalidate his conviction. C. Reversal of Conviction Gracey does not dispose entirely of Gonzales’ appeal, however. Gonzales also contends that omitting the defendant’s age — an essential element — from the charging document and from the jury instructions requires reversal of his conviction for aggravated indecent liberties with a child under the age of 14. This argument has no merit in light of the recent case of Bello, 289 Kan. at 195. Like Gonzales, Bello was convicted of aggravated indecent liberties with a child under the age of 14 and aggravated criminal sodomy. With regard to both of Bello’s crimes of conviction, because he was 18 years of age or older and the victim was under 14 years of age, the crimes were off-grid severity level crimes under K.S.A. 21-4706. Asserting that the defendant’s age is an essential element and making the same arguments that Gonzales now brings before this court, Bello characterized K.S.A. 2006 Supp. 21-4643 as a statute which establishes a separate, aggravated form of the enumerated crimes. This court rejected the idea that separate crimes were created by the statute. Instead, we observed that each of the statutes defining Bello’s crimes — aggravated criminal sodomy and aggravated indecent liberties with a child — “sets forth two separate levels of the offense which can apply to the act which Bello committed: one a KSGA nondrug grid box offense, and the other an off-grid offense.” Bello, 289 Kan. at 198. We explained that “[t]he determination of which offense applies turns on whether the offender was age 18 or older when committing the criminal act.” Bello, 289 Kan. at 198. We further noted that the crime-defining statutes in Bello are comparable in structure to the theft statute, K.S.A. 21-3701, which describes varying levels of offenses based upon the additional fact of the stolen property’s value. Bello, 289 Kan. at 198; see also, e.g., State v. Piland, 217 Kan. 689, Syl. ¶ 3, 538 P.2d 666 (1975) (where value of stolen property is at issue, trial court should instruct the jury regarding the element of value and require a juiy finding as to value). Hence, although K.S.A. 21-4643 reiterates the age factor which elevates the sentence for aggravated indecent liberties with a child to a hard 25 life sentence, the fact remains that the severity-enhancing factor is initially identified in K.S.A. 21-3504, the statute defining the elements of the crime. Bello, 289 Kan. at 198. In other words, as applicable to the present case, the defendant’s age is an element of the crime of aggravated indecent liberties with a child when the crime is charged as an off-grid severity level offense. Omitting the defendant’s age from a complaint or from jury instructions does not eliminate the existence of the crime of aggravated indecent liberties with a child or invalidate a criminal conviction for that offense — the crime severity level is merely characterized as the applicable KS GA severity level stated in K. S. A. 21-3504(c) rather than as an off-grid offense. Gonzales’ conviction of aggravated indecent liberties with a child is valid. D. Apprendi Nevertheless, there remains the question of whether the failure to instruct the jury on the age of the defendant means that the aggravated sentence is invalid. Keeping in mind the holding that a defendant is validly convicted of aggravated indecent liberties with a child, the Bello court found significant the United States Supreme Court’s rationale in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), in determining whether an enhanced sentence was valid. In Apprendi, the Supreme Court clarified that merely because a state legislature places a sentence enhancing factor within the sentencing provisions of the criminal code does not mean that the factor is not an essential element of the offense. 530 U.S. at 495. In Bello, relying on Apprendi, we stated: “If a ‘sentencing factor’ is used to increase a defendant’s sentence beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the juiy’s guilty verdict.” Bello, 289 Kan. at 199 (citing 530 U.S. at 494 n.19). We observed that at Bello’s trial, the State failed to present evidence of his age, and the trial court did not instruct the jury to make a finding that Bello was age 18 years or older. Therefore, based on the facts reflected in the jury verdict, without the sentencing judge finding the additional fact of Bello’s age, he could only receive the statutory maximum sentences found in the KSGA nondrug offense sentencing grid applicable to his crimes of conviction. We reiterated that to increase the penalty to an off-grid penalty, “the fact that Bello was age 18 years or older at the time he committed the offense needed to have been submitted to the jury and proved beyond a reasonable doubt.” Bello, 289 Kan. at 199-200 (citing State v. Gould, 271 Kan. 394, Syl. ¶ 2, 23 P.3d 801 [2001]). Likewise, in Gonzales’ case, the State failed to present evidence of his age at trial, and the jury was not instructed to make a finding regarding Gonzales’ age. Under the reasoning in Bello, when a defendant is charged with an off-grid severity level offense of aggravated indecent liberties with a child, the element of the defendant’s age must first be submitted to the jury and proved beyond a reasonable doubt in order for a defendant to be sentenced for an off-grid severity level offense under K.S.A. 21-4643. Accordingly, the sentence imposed on Gonzales under K.S.A. 21-4623 is vacated and the case is remanded for resentencing on Count II as a felony on the KSGA nondrug sentencing grid. In light of our holding, we decline to address Gonzales’ alternative arguments regarding a disproportionate/cruel or unusual sentence and the district court’s denial of his request for a downward departure sentence. III. Criminal History Finally, Gonzales contends that the district court violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution under Apprendi, 530 U.S. 466, when it sentenced him to an increased sentence, based upon his criminal histoiy, without requiring that the State prove his criminal history to a jury beyond a reasonable doubt. Gonzales concedes that this issue is controlled by our decision in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). And this court has continued to consistently follow Ivory. See, e.g., State v. Riojas, 288 Kan. 379, 388, 204 P.3d 578 (2009); State v. Farmer, 285 Kan. 541, 555, 175 P.3d 221 (2008). Gonzales provides no compelling reason to revisit our current holding on the constitutionality of calculating criminal history scores without submitting them to a jury. We affirm in part, reverse in part, vacate the sentence, and remand to the district court with directions.	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The opinion of the court was delivered by Johnson, J.: The State appeals the district court’s dismissal of criminal charges filed against Wendell Leshay relating to allegations that he possessed cocaine. The charges were dismissed after the district court determined that K.S.A. 22-2902a, which authorizes the admission of forensic laboratory reports at preliminary hearings, is unconstitutional because it violates the Confrontation Clause of the Sixth Amendment to the United States Constitution. Finding that the Confrontation Clause does not apply to laboratory reports admitted at a preliminary examination, we reverse and remand for further proceedings. FACTUAL OVERVIEW Leshay was arrested and charged with possession of cocaine and six other felony charges. During the preliminary hearing, the magistrate admitted a Kansas Bureau of Investigation (KBI) laboratoiy report, which identified substances found on scales retrieved from Leshay’s home as cocaine. Leshay objected to the admission of the report as violating his Sixth Amendment right to confrontation because the technician who prepared the report was not present to testify. The court overruled the objection and ultimately bound over Leshay on all charges. Before trial, Leshay filed a motion to dismiss, reasserting his Confrontation Clause argument regarding the admission of the lab reports. The district court opined that, after the United States Supreme Court decision in Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), the provision of K.S.A. 22-2902a which authorizes the admission of certain forensic reports without the necessity of in-person testimony violates the Sixth Amendment’s Confrontation Clause. Accordingly, the district court dismissed the charges to which the laboratory report related. In turn, the State dismissed the remaining charges of the complaint and appealed the district court’s dismissal. STANDARD OF REVIEW We employ an unlimited standard of review when addressing issues pertaining to the Confrontation Clause of the Sixth Amendment to the United States Constitution. State v. Noah, 284 Kan. 608, 612, 162 P.3d 799 (2007). Any issue of statutory interpretation is likewise subject to de novo review. State v. Ortega-Cadelan, 287 Kan. 157, 164, 194 P.3d 1195 (2008); State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006). STATUTORY PROVISION The authority for a court to admit a KBI laboratory report at a preliminary examination without the presence of the laboratory technician is set forth in K.S.A. 22-2902a, which provides in relevant part: “At any preliminary examination in which the results of a forensic examination, analysis, comparison or identification prepared by the Kansas bureau of investigation . . . are to be introduced as evidence, the report, or a copy of the report, of the findings of the forensic examiner shall be admissible into evidence in the preliminary examination in the same manner and with the same force and effect as if the forensic examiner who performed such examination, analysis, comparison or identification and prepared tíre report thereon had testified in person.” K.S.A. 22-2902a is situated in the Kansas Code of Criminal Procedure in the article dealing with procedures after arrest. It is immediately preceded by K.S.A. 22-2902, which statutorily creates the right to a preliminary examination in every case except where the charge resulted from a grand jury indictment. In other words, the provisions of K.S.A. 22-2902a were specifically and intentionally targeted to apply solely to preliminary examinations. The provisions are not applicable to the admission of forensic examiner reports at trial. Cf. K.S.A. 2008 Supp. 22-3437 (governing admissibility of forensic examiner reports at trial). CONFRONTATION CLAUSE The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” That guarantee applies to criminal defendants in both federal and state prosecutions. See Pointer v. Texas, 380 U.S. 400, 406, 13 L. Ed. 2d 923, 85 S. Ct. 1065 (1965) (Sixth Amendment applicable to states via Fourteenth Amendment). In a recent landmark decision, Crawford v. Washington, the United States Supreme Court significantly overhauled the analysis and application of the Confrontation Clause. Crawford clarified that a witness’ testimony against a defendant is inadmissible unless the witness appears at trial or, if the testimonial witness is unavailable to testify at trial, the defendant had a prior opportunity for cross-examination. Crawford, 541 U.S. at 59; see Melendez-Diaz v. Massachusetts 557 U.S. 305, 174 L. Ed. 2d 314, 129 S. Ct. 2527, 2531 (2009). Crawford did not specifically define what types of statements were testimonial. 541 U.S. at 68 (“We leave for another day any effort to spell out a comprehensive definition of ‘testimonial.’ ”). In this case, the State did not seriously challenge the character of the KBI lab report, conceding that it was testimonial based upon a Court of Appeals decision that was pending review in this court. Subsequently, the United States Supreme Court specifically found that a laboratory analyst’s certificate offered to prove the substance which defendant had possessed was cocaine fell within the “core class of testimonial statements” subject to the Confrontation Clause. Melendez-Diaz v. Massachusetts, 557 U.S. at 310. Based on that decision, we conclude that the forensic examiner reports referred to in K.S.A. 22-2902a are testimonial statements. APPLICABILITY OF CONFRONTATION CLAUSE On appeal, the State argues that the Confrontation Clause of the Sixth Amendment does not apply at a preliminary examination, i.e., a defendant does not have the right to confront the witnesses against him or her at that stage of the criminal proceedings. Obviously, if the right to confront witnesses is inapplicable to a prehminaiy examination, then K.S.A. 22-2902a, which deals solely with the admission of a forensic examiner’s report at the preliminary examination, cannot be unconstitutional under the Confrontation Clause. Leshay acknowledges that the State’s argument is directly supported by this court’s prior decision in State v. Sherry, 233 Kan. 920, 667 P.2d 367 (1983). In Sherry, like here, the district court dismissed drug charges following the preliminary examination at which the prosecution had used K.S.A. 22-2902a to admit Wichita Police Department laboratory reports. The statute had been recently amended to essentially its current form. See L. 1982, ch. 143. The district court in Sherry had opined that K.S.A. 22-2902a was constitutionally deficient in a number of ways, including being in violation of “ ‘the right of confrontation, the denial of effective assistance of counsel, and denial of equal protection and due process.’ ” 233 Kan. at 924. The State appealed the dismissal, and this court reversed. The Sherry opinion reviewed the legislative history of the 1982 changes to K.S.A. 22-2902a, noting that its purpose was to increase the efficient use of the forensic examiner s time. 233 Kan. at 925-26. It then declared that “[t]he constitutionality of K.S.A. 1982 Supp. 22-2902a is directly related to what procedure the Constitution of the United States requires in a prehminary examination, and the nature and purpose of the prehminary examination in Kansas.” 233 Kan. at 927. With respect to constitutional requirements, Sherry cited to Gerstein v. Pugh, 420 U.S. 103, 112-13, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975), for the proposition that, although the Fourth Amendment requires the states to afford a criminal defendant a timely judicial determination of probable cause as a prerequisite to detention, an adversarial hearing is not constitutionally required. 233 Kan. at 927. “The legislature of each state has the power to create a procedure for prehminary examinations.” 233 Kan. at 928. Sherry discussed the significance of the prehminary examination in this state, but noted that “the source of the right to a full adversarial proceeding is statutory.” 233 Kan. at 928. Accordingly, Sherry rejected the claimed violation of the Confrontation Clause: “The trial court was incorrect when it ruled that K.S.A. 1982 Supp. 22-2902a violated the defendant’s constitutional right of confrontation at the preliminary hearing. There is no constitutional right to allow the accused to confront witnesses against him at the preliminary hearing. Gerstein v. Pugh, 420 U.S. at 121-22. The Sixth Amendment right of confrontation is protection that exists at the trial of the defendant. If the defendant wishes to examine the qualifications of the forensic examiner, the procedure followed in testing the substance, or the results of the test, he may do so by subpoena, bringing the forensic examiner into court pursuant to K.S.A. 22-3214. A defendant may request discovery pursuant to K.S.A. 22-3212 and 22-3213. Defendants also have the right to have similar or other tests performed by their own experts.” 233 Kan. at 929. The State also points to the United States Supreme Court declaration that “[t]he right to confrontation is basically a trial right.” Barber v. Page, 390 U.S. 719, 725, 20 L. Ed. 2d 255, 88 S. Ct. 1318 (1968). However, that statement was made in connection with the court’s discussion of whether the opportunity to cross-examine a witness at a preliminary hearing was sufficient to satisfy the right of confrontation where the prehminary hearing transcript was used at trial, in lieu of the live witness. The question of whether a con stitutional right of confrontation also existed at the prehminaiy hearing was not before the court. Leshay does not argue that Sherry was wrongly decided at the time of its issuance. Rather, he simply points out that the Kansas Supreme Court decided Sherry long before the United States Supreme Court rendered its decision in Crawford. Leshay does not, however, explain how Crawford changed or rendered invalid the rationale employed by either Sherry or the United States Supreme Court decision in Gerstein, upon which Sherry relied. We are unable to make that connection on our own. Crawford involved the admission of a testimonial statement at trial, not at a probable cause hearing. The essence of the opinion was to ehminate the “adequate ‘indicia of reliability ” exception to the right of confrontation which had been recognized in Ohio v. Roberts, 448 U.S. 56, 66, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980). “Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” Crawford, 541 U.S. at 68-69. The Court had no occasion to revisit when the full panoply of rights, including the right of confrontation, might arise prior to trial. In short, we do not read Crawford as making confrontation a constitutional requirement at a prehminaiy examination. Leshay further argues that the language of the Sixth Amendment does not explicitly state that it is applicable only “at trial.” He then implicitly acknowledges that the time at which the Sixth Amendment rights first arise is, by necessity, a matter of judicial interpretation by citing to Kirby v. Illinois, 406 U.S. 682, 689-90, 32 L. Ed 2d 411, 92 S. Ct. 1877 (1972), for the proposition that the Sixth Amendment right to counsel attaches at the time of arraignment. Moreover, the Kirby holding is not persuasive given that a preliminary examination in this state precedes arraignment. See K.S.A. 22-2902(7) (judge conducting prehminaiy examination has discretion to conduct arraignment at conclusion of prehminaiy examination). Likewise, Leshay’s reliance on decisions from other jurisdictions finding that the Confrontation Clause apphes at sentencing is not compelling on the issue of whether it applies at the probable cause hearing. Interestingly, Leshay also cites to Barber v. Page but suggests that the Supreme Court equivocated by saying that “[t]he right to confrontation is basically a trial right.” (Emphasis added.) 390 U.S. at 725. However, where we find Barber v. Page to be cogent to our issue is in its description of the “ primary object of the [Confrontation Clause of the Sixth Amendment],’ ” which includes “ ‘an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.’ ” 390 U.S. at 721 (quoting Mattox v. United States, 156 U.S. 237, 242-43, 39 L. Ed. 409, 15 S. Ct. 337 [1895]). That language at least suggests that the right to confrontation was designed to function at trial. Curiously, Leshay contends that our holdings in State v. Young, 277 Kan. 588, 87 P.3d 308 (2004), and State v. Noah, 284 Kan. 608, 162 P.3d 799 (2007), somehow support his argument that the right to confrontation exists at the preliminary examination. Those cases dealt with whether the defendant’s right to confrontation at trial was satisfied because the defendant had been afforded a prior opportunity to cross-examine the witness at the prehminary hearing. Neither case even suggests that just because the defendant received the opportunity to confront the witness at the prehminary hearing, the prior opportunity had been constitutionally mandated. A state’s statutory procedure for probable cause determinations may well present an opportunity for the defendant to cross-examine a witness at the prehminary hearing without elevating the opportunity to a federal constitutional right. Finally, Leshay fashions an argument that denying him the right to confront and cross-examine the forensic examiner constituted a violation of his due process rights under the Fifth and Fourteenth Amendments. He contends that the Court of Appeals opinion in State v. Palmer, 37 Kan. App. 2d 819, 158 P.3d 363 (2007), is analogous. That opinion suggested that the denial of the opportunity to confront and cross-examine a witness at a probation revo cation hearing can have due process implications. Leshay asserts that a criminal defendant’s liberty interest is as involved in the preliminary examination outcome as it is at a probation revocation hearing. Leshay did not make the due process argument to the district court. Constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review. State v. Alger, 282 Kan. 297, 304, 145 P.3d 12 (2006). Leshay does not argue that suspension of the issue preservation requirement is warranted. See State v. Shopteese, 283 Kan. 331, 339, 153 P.3d 1208 (2007) (discussing exceptions to general rule that new legal theoiy may not be asserted for first time on appeal). Moreover, Palmer included a factual component in the calculus, indicating that the trial court should evaluate the State’s explanation for the denial of the right to confrontation and the reliability of the proffered evidence. Appellate courts should not be the first to consider an issue which requires factual findings. See Ortega-Cadelan, 287 Kan. at 161 (decfining to be the first tribunal to consider inherently factual cruel and unusual punishment issue). In conclusion, we hold that the federal Constitution does not require a state to establish a procedure for the prehminary examination of probable cause that affords the defendant the full panoply of constitutional rights which are applicable at a criminal defendant’s trial. The Confrontation Clause of the Sixth Amendment to the United States Constitution does not apply to the admission of KBI laboratory reports at the prehminary examination. K.S.A. 22-2902a is not unconstitutional. Reversed and remanded. 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The opinion of the court was delivered by Schroeder, J.: This is a common law action for personal injuries and property damage resulting from an ordinary intersection collison in the City of Wichita, Kansas, between two motor vehicles on July 24, 1956. The action was filed twenty-two months after the accident. The only question presented is whether a party who has a right to recover workmen s compensation, which he fails to assert against his employer, is required to bring his common law action against a third party wrongdoer within one year under the provisions of G. S. 1955 Supp., 44-504 (now G. S. 1959 Supp., 44-504). The plaintiff, Clarence E. Davis (appellant), in his petition charged the defendant, James N. Reed (appellee), with negligence, and the defendant in his answer charged the plaintiff with contributory negligence. Issues were traversed and the matter was tried before a jury. It was first discovered during the plaintiff’s testimony that he was employed by the Wichita Eagle, Inc., a newspaper in Wichita, Kansas, on the 24th day of July, 1956, when the accident occurred, collecting for ads that had been run the previous day. He testified he made no claim for workmen’s compensation because he “didn’t know anything about that.” It is conceded the Wichita Eagle was operating under the workmen’s compensation act, and the plaintiff admitted the suit was not brought by the Wichita Eagle or its workmen’s compensation insurance carrier. The plaintiff received no benefits from his employer as a result of the injury. The trial court overruled a demurrer to the plaintiff’s evidence, whereupon the defendant over objection was granted leave to amend his answer to add the following allegation: “No. 5. For further answer it is alleged that at the time of the accident plaintiff was employed by the Wichita Eagle, Inc. and plaintiff and his employer were subject to and were operating under the provisions of the workmen’s compensation act of the State of Kansas; that the injury sustained by plaintiff for which claim is made in this action is an injury for which compen sation was payable under the workmen’s compensation act of the State of Kansas; that the cause of action therefore was assigned by statute to the employer and its insurance carrier at the expiration of one year after the date the injury was sustained; that this action was brought more than one year after the date of injury; that this action was brought solely by the workman, and the employer and its insurance carrier have no interest in this action and have not brought this action and the claim is therefore barred by limitation and the plaintiff is an improper party to bring the action.” At the close of all the evidence the trial court, on motion of the defendant, directed a verdict in favor of the defendant, assigning as its reason the substance of the foregoing quoted allegation in the answer. After hearing argument on the plaintiff’s motion for a new trial, the trial court sustained the motion insofar as property damages were concerned, but overruled the motion as to personal injuries. Appeal has been duly perfected by the plaintiff presenting the question heretofore stated. The defendant did not cross appeal from the order granting the plaintiff a new trial on the matter of property damages. The appellee is therefore not here on the question whether the plaintiff’s evidence has shown sufficient facts to constitute a cause of action. On this point the appellee contends the appellant’s evidence convicted him of contributory negligence as a matter of law. As we read the record, even if the appellee were here on this question, it is properly one which should be left to the jury for determination. It is the appellee’s position that this is a case in which compensation was payable under the workmens compensation act to the appellant, and since he failed to file suit in his own behalf within one year from the time of the accident, or amend his petition to show the action was being prosecuted by his employer, under the provisions of G. S. 1959 Supp., 44-504, the cause of action was assigned to the appellant’s employer and could therefore not be enforced by the appellant. For this reason it is argued the appellant is barred from recovery in this action. Our decision turns on the construction of 44-504, supra, which insofar as pertinent provides; “When the injury . . . for which compensation is payable under this act was caused under circumstances creating a legal liability against some person other than the employer to pay damages, the injured workman, . . . shall have the right to take compensation under the act and pursue his . . . remedy by proper action in a court of competent jurisdiction against such other person. In the event of recovery from such other person by the injured work man, ... by judgment, settlement or otherwise, the employer shall be subrogated to the extent of the compensation and medical aid provided by him to date of such recovery and shall have a lien therefor against such recovery and the employer may intervene in any action to protect and enforce such lien: . . . Such action against the other party, if prosecuted by the workman, must be instituted within one (1) year from the date of the injury, . . . Failure on the part of the injured workman, ... to bring such action within the time herein specified, shall operate as an assignment to the employer of any cause of action in tort which the workman . . . may have against any other party for such injury . . . and such employer may enforce same in his own name or in the name of the workman, dependents or personal representatives fpr their benefit as their interest may appear by proper action in any court of competent jurisdiction . . .” (Emphasis added.) We have been cited to no Kansas case, nor has our research disclosed any, which has directly decided the question presented under 44-504, supra, as it presently appears. The appellee relies upon the words “for which compensation is payable” at the beginning of 44-504, supra, but overlooks other portions of the statute. It is argued the word “payable” means legally enforceable, justly due, capable of being paid, citing National Bank v. National Bank, 84 Tex. 40, 19 S. W. 334; and In re Advisory Opinion to the Governor, 74 Fla. 250, 77 So. 102. The appellee contends the statutory language is clear and unambiguous and 44-504, supra, given a liberal construction, must be enforced literally. In many states the workmen’s compensation acts specify what shall occur as a condition precedent to assignment of the cause of action to the employer, such as: An award of compensation, payment of compensation, perfecting a claim for compensation, or the existence of an obligation or liability to pay compensation. (101 C. J. S., Workmen’s Compensation, § 998, pp. 524, 525.) Notwithstanding the fact this court is committed to the rule of liberal construction of the workmen’s compensation act in order to award compensation to an injured workman in cases where it is reasonably possible to do so within the provisions of the act, consistency of decisions involving interpretation of the act cannot be maintained by construing it liberally in favor of compensation where the workman seeks compensation and strictly against compensation when he seeks damages. In other words, the same rule must govern a given set of facts whether invoked by an employer or an employee. (Bright v. Bragg, 175 Kan. 404, 264 P. 2d 494; Shuck v. Hendershot, 185 Kan. 673, 347 P. 2d 362; and Schafer v. Kansas Soya Products Co., 187 Kan. 590, 358 P. 2d 737.) Here it is interesting to note the appellee, a so-called third party wrongdoer, is asserting the rule of liberal construction under the workmen s compensation act to avoid common law liability. The natural and logical interpretation of 44-504, supra, contemplates that a claim for workmen’s compensation must be asserted by the injured workman against his employer, or he must accept compensation, to invoke the provisions of the act pursuant to which compensation is payable. (See, G. S. 1959 Supp., 44-520a, and 44-557.) In other words, there can be no compensation payable to the workman for the injury unless, as a condition precedent, the provisions of the workmen’s compensation act pursuant to which compensation is payable are invoked by the injured workman. The first sentence of 44-504 gives the injured workman the right to take compensation under the act, in addition to his already existing common law action against the negligent third party. Thus, where the injured workman asserts his common law action, the remaining portion of the section governs the relationship between the workman and the employer in the event the workman chooses to take compensation. Before these provisions can have any application the condition precedent must be met. Obviously, the employer cannot be subrogated until liability has been incurred on behalf of the workman under the act. The automatic assignment of the workman’s cause of action against a third party wrongdoer, where the prior conditions have been met, is precautionary and intended as additional security to the employer who has acquired subrogation rights. The foregoing construction of 44-504, supra, is consistent with Kansas decisions. The workmen’s compensation act fixes the liability of an employer to his employee where both parties are under the act, and this liability is founded upon the contract of employment and the statute. The liability in no sense depends upon tort. It is a liability growing out of contract, the terms of the statute being embodied in the contract. As between the employer and the employee the remedy provided by the workmen’s compensation act is exclusive. The act does not attempt in any way to determine the rights or liabilities of the employee in respect to a person not his employer. It does not take away from an employee his common law right of action for injury to the person against one, not his employer, who by negligence has caused the injury. (Moeser v. Shunk, 116 Kan. 247, 226 Pac. 784; and see, 58 Am. Jur., Workmen’s Compensation, § 60, p. 616; and 106 A. L. R. 1040, 1041.) The language of 44-504, supra, assumes that the liability of a person other than the employer, which exists at common law, continues after the adoption of the act. Thus, a common law action by an injured workman is not affected by the statute, unless the injured workman, who has a right bestowed upon him by the compensation act, brings himself under the statute by asserting a claim for which compensation is payable under the act, or by accepting compensation thereunder, and thereby creating a situation which requires adjustment between the employer and the employee in the event of recovery. Where the conditions precedent have been met to invoke the provisions of the workmen’s compensation act, under 44-504 the employee’s failure to institute an action against the third party wrongdoer within the time operates as a statutory assignment of his cause of action to his employer, but such assignment is not complete and in destruction of the employee’s right. It is restricted for the purposes set out in the statute and to be pursued as authorized by the statute. In effect, it gives the employer a cause of action which he did not otherwise possess. (Terrell v. Ready Mixed Concrete Co., 174 Kan. 633, 258 P. 2d 275, and see, Krol v. Coryell, 162 Kan. 198,175 P. 2d 423.) In reading the cases construing the force and effect of 44-504, supra, it is important to bear in mind the changes' in this section of the act. In the Krol case the statute as it existed prior to the 1947 amendment was set out at length and previous amendments were discussed. One of the fundamental differences in the 1938 amendment was noted, it being wholly silent on the subject of equitable contribution or distribution between the employee and the employer, when the employer enforced a cause of action after acquiring it by assignment under the statute. (See, Jolley v. United Power & Light Corp., 131 Kan. 102, 289 Pac. 962, which arose under the 1927 amendment, antecedent to 44-504, supra.) We think it fundamental that an injured employee covered by the workmen’s compensation act has a choice as to whether or not he will take compensation from his employer. Furthermore, in our opinion, it is immaterial whether an employee has elected not to pursue his right to take compensation under the act, or whether he has failed to assert his claim within the time required by the act in ignorance of his right to assert such claim. A third party wrongdoer is in no way prejudiced by the failure of an injured employee to assert his claim for compensation payable under the act, whether or not such employee knows of his right to compensation. In Turner v. Benton, 183 Kan. 97, 325 P. 2d 349, the court observed, under the factual statements there set forth in the pleading, it was clear that the workman “having elected to take compensation from his employer and at the same time maintain his common law action, is subject to and governed by the provisions of G. S. 1957 Supp., 44-504.” (p. 100.) (Emphasis added.) In Elam v. Bruenger, 165 Kan. 31, 193 P. 2d 225, the decision was governed by the amendment prior to 1947 and was very similar to Krol v. Coryell, supra. The principles set forth in the earlier cases and followed consistently by the Supreme Court in regard to the particular amendments of the statute under discussion which were then in effect, are clearly apparent from Sundgren v. Topeka Transportation Co., 178 Kan. 83, 283 P. 2d 444. There the workmans employer and the insurance carrier were subrogated in the amount of payments made to the workman. It was contended by the defendant that where the employee fails to bring the action within the first year, and the employer proceeds to do so in the second year in the name of the workman, the employer to state a valid cause of action must disclose in the petition both his identity and the necessary facts showing his right as statutory assignee of the cause of action to bring the suit. In the opinion the court said: “We are of the opinion that defendant’s construction of the statute is too narrow. The statute was not enacted to relieve, alter or vary in any way the liability for the tort of the third party wrongdoer. (Moeser v. Shunk, 116 Kan. 247, 226 Pac. 784.) The liability of the tort-feasor remains the same for two years after the injury no matter who brings the action — the employee or the employer. Workmen's compensation statutes are to be liberally construed with the view of making effective the legislative intent and not for the purpose of nullifying it. (Clifford v. Eacrett, 163 Kan. 471, 183 P. 2d 861.)” (p. 88.) (Emphasis added.) A more recent decision following the Sundgren case is Lady v. Ketchum, 186 Kan. 614, 352 P. 2d 21, decided under 44-504, supra, as it presently appears. This section of the act, insofar as it is material to our decision herein, is the same as it was under the 1947 amendment, the change made by the 1955 amendment being immaterial. Both parties rely upon substantially the same decisions, heretofore cited or discussed, but in construing much of the language upon which the appellee relies in these decisions he fails to recognize that a claim for compensation was asserted by the injured employee for which compensation was payable under the act. In conclusion we hold the common law action filed by the appellant against the appellee was in no way affected by the provisions of G. S. 1959 Supp., 44-504. The action is a common law action for damages based upon the alleged negligence of the appellee. It is undisputed the appellant asserted no claim and received no benefits under the workmen s compensation act from the Wichita Eagle, Inc., his employer. The employer, having made no payments upon which to base a subrogation claim, is not a real party in interest. The trial court, after having permitted the appellee to amend his answer upon evidence which was already before the jury, should have instructed the jury to disregard all evidence relating to workmen s compensation, and submitted the case to the jury. (Early v. Burt, 134 Kan. 445, 7 P. 2d 95.) The trial court erred in directing a verdict for the appellee and also in its failure to grant the appellant’s motion for a new trial as to personal injuries. The judgment of the lower court is reversed with directions to grant a new trial.	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The opinion o£ the court was delivered by Fatzer, J.: The defendant, Dwayne Harvey, was charged by the city of Topeka with driving a motor vehicle while under the influence of intoxicating liquor, and was convicted of the charge in the police court. He appealed to the district court where he was tried by a jury and found guilty. This appeal is from orders of the district court overruling defendant’s motions for a mistrial and for a new trial. The only witness called by the city in its case in chief was the arresting officer who testified concerning the defendant’s behavior immediately prior to his arrest, at the time of his arrest, and at the police station following his arrest. He testified that in his opinion the defendant was operating his motor vehicle while under the influence of intoxicating liquor. Thereupon, the city rested its case. The defendant did not take the stand, and the only witness called on his behalf was his wife, Geraldine Harvey. She testified she and the defendant had been married thirteen years and were the parents of three children; that on the evening of November 9, 1960, she and the defendant arrived at Van Vleck’s Tavern on East Sixth Street around 7:00 o’clock in the evening; that between 7:00 and 9:00 o’clock she drank two 3.2 beers and her husband drank no more than four 3.2 beers; that an argument involving family affairs ensued and the defendant got mad, left the tavern, got into his car and drove away, and that in her opinion he was not intoxicated when he left the tavern. She further testified that the next time she saw him was at the police station later that evening, although the time was not fixed. On cross-examination counsel for the city asked Mrs. Harvey the following questions and she made the following answers, over repeated objections by the defendant: “Q. How long have you been married to Mr. Harvey? A. Thirteen years. Q. During that thirteen years has your husband ever been arrested for D-W-I before? (Objection, overruled by the court.) A. Do I answer? Q. What is your answer? A. What was the question? Q. During these thirteen years that you have been married to the defendant has he ever been arrested for D-W-I before? A. Yes. Q. How many times, Mrs. Harvey? A. Three times, I think. Q. Is this the third? A. I think so. Q. This is the third? A. I think so.” At the conclusion of Mrs. Harvey’s cross-examination the defendant rested his case, and the city offered no rebuttal evidence. The defendant contends that the cross-examination of Mrs. Harvey was an attempt by the city to besmirch the character and reputation of the defendant through a witness whose direct examination did not place them in issue, and that the overruling of his objections to questions concerning the defendant’s prior arrests constituted an abuse of discretion and was prejudicial error requiring a reversal of the judgment and conviction. The point is well taken. It is unnecessary to set forth all of Mrs. Harvey’s testimony on direct examination, but we have carefully examined it and are of the opinion that it did not tend in any respect to place the defendant’s character and reputation in issue. This court has long been committed to the rule that the prosecution is not entitled to introduce evidence of the bad character or reputation of the accused unless he has clearly and .expressly put his character in issue by introducing evidence of good character. (State v. Thurtell, 29 Kan. 148; State v. Kirby, 62 Kan. 436, 446, 63 P. 752; State v. Roselli, 109 Kan. 33, 198 P. 195; State v. Cushinberry, 180 Kan. 448, 304 P. 2d 561.) See, also, 22A C. J. S., Criminal Law, § 676, p. 704; 20 Am. Jur., Evidence, § 325, p. 304; 1 Wharton’s Criminal Evidence [12th ed.], § 232, p. 492. The rule is founded upon the wise policy of avoiding the unfair prejudice and unjust condemnation which such evidence might render in the minds of the jury. If such testimony should be admitted, the defendant might be overwhelmed by prejudice, instead of being tried upon the evidence affirmatively showing his guilt of the specific offense with which he is charged. (1 Greenleaf on Evidence [16th ed.], § 14b, 14q; Wigmore on Evidence, § 57.) There are certain exceptions to the foregoing rule that the prosecution cannot resort to the defendant’s bad character as a circumstance from which to infer his guilt, which are set forth in State v. Myrick, 181 Kan. 1056, 1058, 1059, 317 P. 2d 485. Those exceptions are inapplicable here and will not be restated since the defendant did not take the stand in his own behalf, nor did his witness offer evidence of his character and reputation. However, reference to one exception is here made; that is, that proof of an independent crime is admissible in the discretion of the court, and may be received in the prosecutioris case in chief, under proper instructions, if it is relevant to the proof of the guilt of the defendant for the crime with which he is charged, and to be relevant, it must prove or tend to prove identity of person or crime, to prove scienter or guilty knowledge, to prove intent, to show inclination or motive, to prove plan, scheme or system of operation, to prove malice, and to rebut special defenses (State v. Myrick, supra, and cases cited pp. 1058, 1059). The sole effect, if not the purpose, of the testimony in question was to attack the character of the defendant. The city made no attempt in its case in chief to introduce evidence in accordance with the foregoing exception, but, instead, sought to elicit that testimony upon cross-examination. The defendant had not placed his character in issue, and the city may not put it in issue upon the cross-examination of his witness by requiring her to testify concerning his prior arrests for the same or similar offenses (King v. State, 166 Ga. 10, 142 S. E. 160; State v. Gilstrap et al., 149 So. C. 445, 147 S. E. 600; Alfredo Johnson v. The State, 149 Tex. Cr. 245, 193 S. W. 2d 528; R. D. West v. The State, 137 Tex. Cr. 554, 132 S. W. 2d 872; Adams v. District of Columbia, D. C. Mun. App., 134 A. 2d 645). As Mr. Justice Rrewer stated many years ago in State v. Adams, 20 Kan. 311, 319, “You cannot prejudice a defendant before a jury by proof of general bad character, or particular acts of crime other than the one for which he is being tried.” We cannot, and do not in this case, lay down a rule that cases should be reversed because improper questions were asked, but we feel warranted to say that the error reflected in the record prejudicially affected the rights of the defendant, hence, the judgment of the district court is reversed with directions to sustain the defendant’s motion for a new trial. It is so ordered.	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The opinion of the court was delivered by Fatzer, J.: This appeal arises out of a condemnation proceeding commenced by the board of county commissioners of Wyandotte County to improve and reconstruct a benefit-district road. The facts are not in dispute. The appellant, Albert H. Barker, owned certain real estate deemed necessary by Wyandotte County to improve and reconstruct Hutton Road as a secondary road project. On October 7, 1957, being unable to purchase the real estate, the county commissioners invoked the provisions of G. S. 1949, 68-703 to condemn that part of appellant’s land needed for the road improvement. An appropriate resolution was adopted which described the land in three separate tracts, and fixed the time and place of the appraisement and proper notice was given the appellant. At the time and place fixed in the notice, and acting in their capacity as appraisers, the county commissioners proceeded to view the tracts described, appraised their value, and assessed the damages. Separate written reports of their findings were filed with the county clerk showing the amount allowed the appellant for each tract, as follows: One tract, $2,726.70; another tract, $741.80; and the third tract, $1,266.60, or a total appraisement of $4,735.10. The appellant was notified by registered mail of the total amount of the appraisement and that the board would meet on November 12, 1957, to finally determine the amount to be paid as damages for the land taken. On that date, the board met in regular session and by resolution awarded appellant as damages the sum of $4,535.10, or $200 less than the original appraisement. On November 20, 1957, the amount awarded was reduced to a county warrant drawn on the special benefit-district fund, made payable to the appellant, and deposited with the county clerk where it has since remained. Thereafter the county took possession of the property and made the road improvement. On November 22, 1957, the appellant perfected an appeal from the award of the commissioners to the district court, which was tried by a jury and it returned a verdict in favor of the appellant for $13,875.40. Judgment was entered against the county for $9,340.30, the difference of the amount of the jury’s verdict and the amount of the original award deposited with the county clerk, with interest at 6 percent per annum from November 20, 1957, to the date of payment, which was paid to the clerk of the district court. The journal entry also provided that appellant was to have the amount of the original award of $4,535.10. No question is presented concerning the proceedings on appeal or the amount of interest paid. The appellant did not withdraw the original award deposited with the county clerk, and this appeal concerns only the question whether interest at 6 percent per annum may be allowed on $4,535.10 from November 20, 1957, to the date of payment. The district court’s refusal to allow interest is specified as error. The appellant’s contention may be stated thusly: That the county commissioners were proceeding under G. S. 1959 Supp. 26-102 in the condemnation of his land; that the statute required the condemning authority to deposit the amount of the appraisers’ award into the court; that when the commissioners deposited the amount finally awarded with the county clerk rather than with the clerk of the district court as the statute directs, the deposit was in effect no payment at all, and he is entitled to interest on the amount and for the period claimed. The appellant concedes that under the above statute, as construed in Burke v. Board of Education of Common School District No. 110, 181 Kan. 534, 313 P. 2d 272, where the condemning authority deposits the amount awarded into the court and takes immediate possession of the land, the landowner is entitled to withdraw the amount deposited without prejudice to his right to appeal, and if the appeal results in an increase, he is entitled to interest at 6 percent on the amount of the increase only. In view of the appellant’s contention, our first inquiry is: Under what statute was the condemnation proceeding had? We answer: The record clearly discloses the commissioners proceeded in accordance with G. S. 1949, 68-703 to acquire the appellant’s land. The statute is one of the sections of Chapter 246, Laws of 1919. It is a part of our statutes dealing generally with benefit-district roads and specifically with condemnation proceedings by boards of county commissioners to establish and maintain such roads. Like other statutes of similar purport (G. S. 1949, 68-106, 107, 114, 137, 509), it is one which authorizes the taking of private property for public use by a nonjudicial board or tribunal. A condemnation proceeding under it is a special proceeding in the nature of an inquest, and the procedure is prescribed by statute. Only that portion pertinent to this appeal is quoted: “. . . Upon the day named in said notice or on the following day thereafter, the county commissioners shall meet at the place stated in said notice and proceed to view the road and changes required and shall view all lands required to be taken for the relocation, laying out, altering or widening of said highway for the purposes described in this section and appraise the value thereof and assess the damages thereto and shall forthwith file in the office of the county clerk of said county a written report of their findings, and cause tire plat of said road as changed to be filed therewith. All applications for damages must be filed in uniting with the county clerk on or before the first day of the next regular session of the board following the filing of said report, and the board shall at said regular session finally determine upon the amount to be paid as damages to any owner or owners of any land. And the amounts so allowed shall be paid from the special fund provided for the construction of the road in the benefit district, or for a section or project, as the board may determine. The right of appeal from, the award of damages made by the board of county commissioners shall be the same as is now provided by law in other road cases, but such appeal shall not delay any work upon or in relation to said road. . . (Emphasis supplied.) Implicit in appellant’s contention is the conclusion that if the amount awarded him as damages were properly deposited with the county clerk and subject to his withdrawal without prejudice to his right to appeal, that is, if the county clerk were the proper depository under the statute, and G. S. 1959 Supp. 26-102 was applicable and governed the taking of his appeal to the district court, he would not be entitled to interest on the amount deposited, but only on the amount of the increase allowed by the jury (Burke v. Board of Education of Common School District No. 110, supra), which, the record indicates, has been paid by the county into the district court. As is observed from that part of section 68-703 quoted above, no provision directs the condemning authority to deposit the amount awarded the landowner with the county clerk — in fact, it is silent as to where such an award shall be deposited. But it is also obvious there is no direction to pay the amount awarded to the clerk of the district court, either before or after a landowner’s appeal is perfected. The implication is just the reverse. The fact that a de pository was not expressly named does not mean that one was not impliedly designated. Necessity dictates, and the general scheme of our eminent domain statutes requires, that, to avoid confusion and uncertainty in condemnation proceedings, an award by the condemning authority for damages to a landowner be deposited in some public office in the county to be available for the use of those entitled thereto. The interest of the owner, lien holder, or other interested person in the land before it was condemned, is, by the proceeding, transferred to the amount deposited as damages for the land taken, to which they are compelled to look for compensation. (Dye v. Railroad Co., 77 Kan. 488, 491, 94 P. 785; Kansas Homes Development Co. v. Kansas Turnpike Authority, 181 Kan. 925, 929, 317 P. 2d 794.) If the owner is dissatisfied with the award, he may protect his interest by taking an appeal to the district court, and what was previously a special proceeding in the nature of an inquest becomes an action to be docketed and tried in the same manner as other civil actions in the district court. (Glover v. State Highway Comm., 147 Kan. 279, 77 P. 2d 189.) To accomplish that, the owner perfects his appeal in the same manner “as is now provided by law in other road cases,” but the appeal does not delay any work upon or in relation to the road. No provision is made for an appeal by the condemner since the county commissioners finally determine the amount of the landowner’s award and there would be no necessity for an appeal from their own findings. When consideration is given to the statute (68-703) and the subject to which it relates, and to the general relationship of the county clerk to the board of county commissioners, we think it clear the legislature intended the county clerk to be the proper depository for an award of damages allowed by the county commissioners. The conclusion is supported by reason and logic. Under the former, all proceedings relating to the condemnation are filed with the county clerk including the written report of the appraisement of damages for the land taken. The written application of a landowner for damages is also required to be filed in that office, and the amount finally awarded as damages is directed to be paid from the special benefit-district road fund (68-708). Under the latter, the county clerk is the clerk of the board of county commissioners. (G. S. 1949, 19-304-307; Atchison, T. & S. F. Rly. Co. v. Montgomery County Comm’rs, 121 Kan. 428, 430, 247 P. 442.) It is his duty to attend the sessions of the board; to record all papers and proceedings of the board; to sign the records of their proceedings and attest the same with the seal of the county (G. S. 1949, 19-304-307), and to record in the “road record” all proceedings with respect to the laying out and establishing roads in the county (G. S. 1949, 19-310). In view of the foregoing, it follows that when the amount awarded appellant was deposited with the county clerk, the deposit was made in conformity with the provisions of G. S. 1949, 68-703. In that respect it was analogous to, or stood in the same relation as, a deposit with the clerk of the district court by a condemning authority in a condemnation proceeding commenced under G. S. 1959 Supp. 26-102. It also follows that the amount awarded the appellant and deposited with the county clerk has since remained available to him and was subject to his immediate withdrawal. Assuming, as the appellant vigorously contends, but in no sense deciding the point (G. S. 1949, 68-106, 107; Miltimore v. City of Augusta, 140 Kan. 520, 527, 528, 38 P. 2d 675; Durkee v. Bourbon County Comm’rs, 142 Kan. 690, 691, 51 P. 2d 984), that his appeal to the district court was perfected in accordance with G. S. 1959 Supp. 26-102, we are of the opinion he was entitled to withdraw the amount deposited with the county clerk on November 20, 1957, without prejudicing his right to appeal. (Burke v. Board of Education of Common School District No. 110, supra, Syl. ¶¶ 1, 2.) Hence, the district court did not err in holding appellant was not entitled to interest on the amount of the original award for the period it was available to him in the county clerk’s office awaiting his demand. The judgment is affirmed.	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The opinion of the court was delivered by Herd, J.: This is a direct appeal from a district court order granting appellees’ motion for summary judgment. Appellant contends, inter alia, that genuine issues of material fact precluded such a decision, and that appellant’s own motion for summary judgment should have prevailed. On January 11, 1951, Nettie Kessinger, a widow; her three sons Calvin, a widower, Henry, and Harold; and their respective wives, Mary and Viola, entered into a gas storage lease with Cities Service Gas Company. The lease covered 366 acres of land in Leavenworth County, Kansas, described as follows: “Northwest Quarter and the West Half of the Southwest Quarter of Section 1, and South Half of the Northeast Quarter and the Northwest Quarter of the Northeast Quarter of Section 2, Township 10 South, Range 20 East.” Northwest Central Pipeline Corporation, defendant- appellant herein, is the successor in interest to the interest owned by Cities Service Gas Company in the lease. Pursuant to the terms of the lease, the Kessingers were to receive annual rental payments of $1.00 per acre, a total of $366.00, to cover storage costs. The lease was for a primary term of ten years, and so long thereafter as Cities Service used lands in the vicinity for gas storage purposes. When the lease was executed there was no dwelling located on the leased land, yet the lease contained a provision for the landowner’s domestic use of natural gas produced or stored on the premises. On January 15, 1952, Nettie Kessinger, sons Calvin and Harold, and Harold’s wife, Viola, conveyed title to the West Half of the Southwest Quarter of Section 1, Township 10 South, Range 20 East in Leavenworth County, to Henry and Mary Kessinger. On July 25, 1962, more than ten years later, Henry and Mary Kessinger sold the West Half of the Southwest Quarter of Section 1 to William F. and Eleanor H. Nussbaum. The first dwelling located on the West Half of the Southwest Quarter was erected in 1962. On March 29,1973, the Nussbaums conveyed the West Half of the Southwest Quarter to appellees Edward and Elizabeth Toothman. The Toothmans subsequently subdivided the West Half of the Southwest Quarter by selling tracts to the following: 1. Mr. and Mrs. Harold Hall, who then conveyed title to Mr. and Mrs. Dale Hummelgaard; 2. Mr. and Mrs. J. C. Harbord; 3. Mr. and Mrs. Lloyd Richardson, appellees; 4. Mr. and Mrs. Donald Toothman, appellees. The dwelling occupied by appellees Edward and Elizabeth Toothman was erected in 1962. The dwelling occupied by appellees Donald and Roberta Toothman was erected in 1973-74. The dwelling occupied by appellees Lloyd and Violet Richardson was erected in 1975-76. The land upon which the appellees’ dwellings stand is subject to the lease. Northwest Central and its predecessor, Cities Service, injected gas into the storage reservoir as authorized by the lease, the leased land being used for gas storage purposes. Paragraphs 5 and 6 of the lease control this controversy. They provide: “5. In the event there was on June 23, 1944, a producing gas well or wells on the above described lands First Party shall have annually, in lieu of gas to which he may be entitled under any oil and gas lease, not to exceed Three Hundred Thousand cubic feet of the gas free of cost, but only from wells on said premises until Second Party begins the actual injection of gas for storage purposes into McLouth Field, while such well or wells are capable of producing such gas, for domestic use at the principal dwelling house on said lands, by making his own connections with the well at his own risk and expense and while he is maintaining all service lines, connections and equipment in a manner to prevent leakage of gas therefrom. Second Party may at its option deliver such free gas at a convenient point on its then nearest pipeline on or in the vicinity of said lands instead of at the well. However, Second Party agrees that if during the term of this lease First Party uses in any one year an amount of gas in excess of Three Hundred Thousand cubic feet, Second Party will sell or cause to be sold to First Party such excess gas at a price of fifty cents (50(6) per thousand cubic feet, Measurement and delivery of gas shall be at Second Party’s meter, calculated according to the regular measuring and accounting procedure and rules and regulations of [SJecond [P]arty pertaining to sale of gas. First Party agrees to pay for such gas so sold to him during any month by the tenth of the next succeeding month, and in the event of failure to do so delivery of gas may be suspended until the amount due Second Party from First Party has been paid in full or until sufficient time shall elapse to satisfy such arrearage by application of future amounts of free gas to which First Party would be entitled hereunder. “6. After Second Party has begun the actual injection of gas as aforesaid and in the event there was not on June 23, 1944 a producing gas well on the above described lands, Second Party, upon written request of First Party for gas, addressed to its Oklahoma City, Oklahoma office, shall within thirty (30) days after receipt of such request set or cause to be set a meter at its then nearest pipeline in a suitable place near to or in the vicinity of said lands, and when First Party, at his own cost and risk, has connected thereto, shall sell or cause to be sold during the term of this lease at it s [sic] such pipeline, gas for domestic use on said lands at a price of fifty cents (50(6) per thousand cubic feet. Measurement and delivery of gas shall be at Second Party’s meter, calculated according to the regular measuring and accounting procedure and rules and regulations of Second Party pertaining to the sale of gas. First Party agrees to pay for such gas sold to him during any month by the tenth of the next succeeding month and in the event of failure to do so delivery of any gas may be discontinued until the amount due Second Party from First Party has been paid in full. “The provisions of this clause (6) shall remain in force and effect until such time as a well capable of delivering gas has been completed by Second Party on the above described lands. If, as and when such a well is completed on said lands, First Party may at his option avail himself of the provisions of Clause Five (5) of this lease.” (Emphasis added.) There has been no production of natural gas on the premises during the term of the lease. Thus, the free gas provision in paragraph 5 is inapplicable. On January 25, 1984, Northwest Central granted J. C. Harbord’s written application to connect to its natural gas pipeline and to receive gas for domestic use at the Harbord residence at the rate of 500 per 1,000 cubic feet (cheap gas). Thereafter, appellant set a meter on its pipeline in the East Half of the Southwest Quarter of Section 1. Between February and September 1984, appellees requested connection to Northwest Central’s pipeline and applied for gas for domestic use at their residences. Northwest Central denied appellees’ request on the ground the parties to the lease did not agree to provide cheap gas to other than the principal dwelling located on the leased land. Northwest Central contended the cheap gas provision was honored by providing cheap gas to the J. C. Harbord residence. Thereafter, appellees filed suit on September 6,1985, seeking: (1) a declaratory judgment determining whether Northwest Central was obligated under the terms of the lease to provide them with cheap gas; (2) damages from being forced to seek and use alternative and more expensive forms of energy, and (3) cancellation of the gas storage lease so far as it pertains to land owned by appellees. On March 19, 1986, appellees filed a motion for summary judgment pursuant to K.S.A. 60-256, asserting that there were no genuine issues of material fact and they were entitled to judgment as a matter of law. On May 12, 1986, appellant filed a motion for summary judgment under K.S.A. 60-256, alleging that there were no issues of material fact and it was entitled to judgment as a matter of law. On June 24, 1986, the district court sustained appellees’ motion for summary judgment, determining the appellees were entitled to cheap gas from Northwest Central. In the alternative, the court found that appellees were entitled to cancellation of the lease. Northwest Central appealed. The first issue is whether genuine issues of material fact remain, precluding appellees’ motion for summary judgment. We have held summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Peoples Nat’l Bank & Trust v. Excel Corp., 236 Kan. 687, Syl. ¶ 5, 695 P.2d 444 (1985); Lostutter v. Estate of Larkin, 235 Kan. 154, 164, 679 P.2d 181 (1984). When summary judgment is challenged on appeal, an appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment. Hollingsworth v. Fehrs Equip. Co., 240 Kan. 398, 401, 729 P.2d 1214 (1986); Professional Lens Plan, Inc. v. Polaris Leasing Corp., 238 Kan. 384, Syl. ¶ 2, 710 P.2d 1297 (1985). Here, both parties filed motions for summary judgment. Thus, neither party has a more favored position in and consideration of the record. Northwest Central contends on appeal that there were genuine issues of material fact which precluded the granting of summary judgment for the appellees. The issues of material fact, Northwest Central contends, were: 1. whether appellant breached its obligation under the lease; 2. whether the original parties to the lease intended to include service of free or cheap gas at more than the principal dwelling on the leased land; and 3. whether the Cities Service Gas Company intended paragraphs 5 and 6 of the lease to be essential parts of the lease. In Jackson v. Farmer, 225 Kan. 732, 739, 594 P.2d 177 (1979), we recited the rules governing oil and gas leases, as follows: “Among the familiar rules governing the construction of oil and gas leases are these: the intent of the parties is the primary question; meaning should be ascertained by examining the document from all four corners and by considering all of the pertinent provisions, rather than by critical analysis of a single or isolated provision; reasonable rather than unreasonable interpretations are favored; a practical and equitable construction must be given to ambiguous terms; and any ambiguities in a lease should be construed in favor of the lessor and against the lessee, since it is the lessee who usually provides the lease form or dictates the terms thereof.” See Adolph v. Stearns, 235 Kan. 622, 627, 684 P.2d 372 (1984); Rook v. James E. Russell Petroleum, Inc., 235 Kan. 6, Syl. ¶ 1, 679 P.2d 158 (1984); A & M Oil, Inc. v. Miller, 11 Kan. App. 2d 152, 154, 715 P.2d 1295 (1986). Thus, the initial question for our determination is whether the agreement in question is ambiguous. Both parties to this appeal contend the agreement is unambiguous; however, not surprisingly, each side would interpret the contract differently. The appellant would construe paragraphs 5 and 6 of the contract in such a way that only the owner of the principal dwelling house is entitled to receive free or cheap gas. Appellant contends the primary difference between the two paragraphs is that paragraph 5 permits the owner of the principal dwelling house to connect with a producing gas well located on the subject property, while under paragraph 6, the owner of the principal dwelling may connect with the lessor’s nearest pipeline, where there are no producing wells located on the land. Appellees, on the other hand, concede that while paragraph 5 provides for the delivery of free or cheap gas from a producing well to the principal dwelling house, paragraph 6 contains no such restriction. Instead, appellees point out that paragraph 6 requires the appellant to supply natural gas “for domestic use on said lands.” Thus, appellees reason appellant is obligated to supply gas to all of the appellees, who are the current occupants of the subject property. Under such an analysis, it follows that Northwest Central would be required to supply cheap gas not only to the appellees but to all future occupants of said land, however numerous they may be. We have held the language in a contract is ambiguous when the words used to express the meaning and intention of the parties are insufficient in the sense that the contract may be understood to reach two or more possible meanings. Stauth v. Brown, 241 Kan. 1, Syl. ¶ 6, 734 P.2d 1063 (1987). Despite the parties’ contentions to the contrary, we find the lease is clearly ambiguous as to which parties are entitled to receive free or cheap gas. Depending upon how the agreement is interpreted, it could require the lessor to provide free or cheap gas to any number of purchasers. However, it could also be interpreted to mean that only the owner of the principal dwelling house is entitled to free or cheap gas for domestic use. We have held that where ambiguity or uncertainty of contract is involved in an agreement, the intention of the parties is not ascertained by resort to literal interpretation, but by considering all language employed, the circumstances existing when the agreement was made, the object sought to be attained, and other circumstances, if any, which tend to clarify the real intention of the parties. Amortibanc Investment Co. v. Jehan, 220 Kan. 33, Syl. ¶ 2, 551 P.2d 918 (1976). With this rule in mind, we now turn to the lease which is the source of this controversy. This lease is a combination oil and gas production lease and a gas storage lease. It contains a primary term with annual rental payments and a “so long thereafter” clause dependent upon the lessee’s continued storage of gas in the area and payment of the annual rental. Paragraph 5 of the lease is a provision pertaining to the production of gas on the premises. It provides that the lessor is entitled to 300,000 c.f. of free gas annually “for domestic use at the principal dwelling house on said lands.” This is the landlord’s share of the gas production. Paragraph 5 further provides after the lessor has received its share of free gas, lessor may purchase additional cheap gas at 500 per thousand cubic feet. This paragraph sets out the parties’ scheme. Paragraph 6 pertains to the lessor’s rights in the event there was no producing gas well on the premises on June 23,1944, and lessee has begun the actual injection of gas into the storage horizon. This paragraph continues the same scheme as in paragraph 5 except it omits the free gas provision. This is logical, since the landowner has no landlord’s share of the stored gas. It gives the landowner the right to buy cheap gas (500 per thousand cubic feet) upon the same terms and conditions as set out in paragraph 5, “for domestic use on said lands.” The words “principal dwelling house” are omitted. The question, then, is whether the omission in paragraph 6 of the words “principal dwelling house” means that lessee is agreeing to furnish cheap gas for domestic purposes to any number of purchasers in case of subdivision of the land. There are 366 acres in the leased acreage. Thus, it could be platted for urban development and could contain in excess of 100 homes if fully developed. Free gas and cheap gas clauses are comparable provisions in oil and gas leases. Each provides additional benefits to the lessor in addition to the rental payment as a part of the consideration for the lease. 3A Summers, Oil & Gas § 587, p. 89 (2d ed. 1958). Also, such provisions are deemed covenants running with the land unless the covenant is specifically with a named individual. See 3A Summers, Oil & Gas § 587, p. 97-100; 3 Williams, Oil & Gas Law § 661.2, p. 757 (1986). Here, the free gas and cheap gas covenants ran with the land under the provision that the lease “shall extend to and be binding upon the heirs, devisees, executors, administrators, personal representatives, successors and assigns of the parties hereto.” Generally, the free gas or cheap gas clause contains the restriction “for domestic use at the principal dwelling house” or similar terminology; never is it unlimited, as such would be economically unfeasible. 3 Williams, Oil & Gas Law § 661. Thus, it is incredulous to believe that in this case, the lessee would covenant to provide stored gas at its cost or less to an unlimited number of assigns of lessor. At the time the lease was executed, there was no dwelling on the premises. Thus, there was no demand for free or cheap gas. In determining the intent of the parties, we deem this a significant fact. In spite of that, the parties agreed to the free gas and cheap gas covenants. In paragraph 5, 300,000 cubic feet of free gas is to be furnished lessor for domestic use at the principal dwelling house and if lessor uses more than that amount, he is required to pay 500 per thousand cubic feet for the excess gas. When the lease discusses the sale of the excess gas it does not repeat the restrictions on use, but there can be no doubt the “domestic use at the principal dwelling” restriction is applicable to both free gas and cheap gas referred to in paragraph 5. Paragraph 6 continues the provisions of paragraph 5 but refers to lessor’s benefits under the gas storage lease as distinguished from the gas production lease. Here, it provides if there is no production, the lessor may still receive the benefit of the cheap gas purchase privilege for domestic purposes on the land previously described in paragraph 5 by notifying lessee and setting a meter at his own cost and risk. It should be noted the lease provides for the setting of “a meter.” Multiple users would require the use of more than one meter. We conclude it is clear from the lease and circumstances surrounding its execution that the parties’ intention was to furnish free gas and cheap gas to the lessors for domestic use only at the principal dwelling house on the premises. We hold that while the covenant runs with the land, it obligates the lessee to provide benefit for only one assignee of lessor. Thus, the present owner of lessor’s principal dwelling is entitled to the cheap gas. The judgment of the trial court is reversed and this case is remanded with directions to enter judgment for appellant.	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The opinion of the court was delivered by Wertz, J.: This was an action filed in the district court of Douglas county by Ethel E. Fleming, plaintiff (appellee), against the National Cash Register Company and The Travelers Insurance Company, defendants (appellants), to recover, under the provisions of G. S. 1949, 44-512a, a lump-sum judgment based upon a workmen’s compensation award on the ground that defendants had failed to pay the compensation installments when due and within two weeks after plaintiff’s demand upon defendants in the form provided by statute. Defendants appeal in case No. 42,391 from the lump-sum judgment entered by the trial court, and in case No. 42,487 from the judgment of the trial court allowing interest on the mentioned judgment. The plaintiff cross-appeals in case No. 42,511 from an order of the trial court refusing her the allowance of attorney fees. Although this case began as a simple action to recover a lump-sum judgment under G. S. 1949, 44-512a, confusion resulted from the injection of matters not joined within the pleadings due to an attempt by defendants to collaterally attack the award of the commissioner. The portions of the record and the stipulated facts necessary to determine the questions here are as follows: On January 27, 1959, the workmen’s compensation commissioner, after a hearing, made an award of compensation in favor of the plaintiff, Ethel E. Fleming, and against the defendants, the National Cash Register Company and its insurance carrier, The Travelers Insurance Company, in the amount of $9,000, payable at the rate of $28 a week. The commissioner found that the compensation then due and owing the plaintiff from March 10,1956, one week after the death of the workman (her husband), to January 31, 1959, was the sum of $4,228, which defendants were ordered to pay in a lump sum. The balance of the compensation awarded was ordered paid at the rate of $28 a week until fully paid or until further order of the commissioner. The order further provided that defendants reimburse the plaintiff in the sum of $450 funeral expenses paid by her. On February 16, 1959, defendants appealed from the commissioner’s award to the district court of Franklin county. After this appeal was argued and submitted and the trial court had taken the same under advisement, it was discovered that a deposition of one of defendants’ witnesses filed in the proceeding before the commissioner had been misplaced and not considered by him in making his‘award. The defendants then filed a motion asking the Franklin county district court to re-submit the cause to the workmen’s compensation commissioner for a full consideration of all the evidence, or, in the alternative, to consider the deposition. On July 8, 1959, the district court of Franklin county sustained defendants’ motion and ordered that the entire file be returned to the commissioner for further consideration of the case. The entire file was returned to the commissioner. No appeal was taken to this court from the mentioned order. On July 25, 1959, plaintiff made written demand of defendants (which was served upon them on July 27), in accordance with G. S. 1949, 44-512a, for payment of the entire amount awarded her by the commissioner on January 27, 1959. On July 30 defendants acknowledged receipt of the demand and stated in part: “As you are fully aware, tills matter is now in the hands of the compensation commissioner under the orders of the District Court of Franklin County, Kansas, and we are obliged to deny the demand contained in your letter in view of the pending litigation.” On August 24, 1959, plaintiff filed this action in the district court of Douglas county to recover, under section 44-512a, the total award of compensation made in her favor. The petition set forth the terms of the award, defendants’ failure to make the payments under the award as ordered, plaintiff’s written demand for the payments due and defendants’ refusal to make such payments. Plaintiff sought therein to recover the lump-sum judgment, together with interest, and a reasonable attorney’s fee. The defendants’ answer admitted the award by the workmen’s compensation commissioner as alleged by the plaintiff, and, as a defense, alleged that defendants had filed in proper time their notice of appeal from the award to the district court of Franklin county; that the appeal was then pending, and that until such time as it was determined, there could be no judgment against them and plaintiff’s action was premature. The district court of Douglas county found upon the pleadings and stipulated facts and that the action of the district court of Franklin county in remanding the case to the commissioner for further hearing was tantamount to a dismissal of defendant’s appeal; that upon dismissal of the appeal the award of the commissioner remained in full force and effect; that no payment had been made as provided in the award, and that the plaintiff was entitled to judgment for the full amount of the award. Judgment was entered accordingly. The trial court further found that plaintiff was entitled to interest on the amount of the judgment at the rate of six per cent from August 12, 1959, which date was two weeks after plaintiff’s written demand for payment was served upon defendants in accordance with section 44-512a, and entered judgment accordingly. The trial court further found that defendant insurance carrier’s refusal to pay upon demand could not be said to be without just cause or excuse, and that plaintiff was not entitled to attorney fees under G. S. 1959 Supp., 40-256. Judgment was entered in accordance therewith. The gist of defendants’ first contention is that since the district court of Franklin county remanded defendants’ appeal to the compensation commissioner for further consideration, there was no final award and hence plaintiff could not maintain the instant action. It is the settled rule in this jurisdiction that under the provisions of the workmen’s compensation act the district court has no authority to remand a case to the commissioner for further proceedings after an award has once been made. It is within the province of the district court to review a case upon receipt of a transcript from the compensation commissioner and to grant or refuse compensation, or to modify the award in accordance with its determination of the questions of fact and law. (Attebery v. Griffin Construction Co., 181 Kan. 450, 461, 312 P. 2d 598.) Moreover, tíre district court may not grant a trial de novo or hear new evidence (Place v. Falcon Seaboard Drilling Co., 186 Kan. 523, 527, 350 P. 2d 788). In Willis v. Skelly Oil Co., 135 Kan. 543, 544, 11 P. 2d 980, we quoted from Fougnie v. Wilbert & Schreeb Coal Co., 130 Kan. 410, 286 Pac. 396, as follows: “ ‘The workmen’s compensation act prescribes its own procedure for a judicial review of proceedings had before the compensation commission, and on appeal the district court has no jurisdiction to remand the cause to the compensation commission to admit further evidence theretofore rejected or ignored by the commission; nor is the court authorized to hear evidence supplementing the record shown by the transcript, nor to grant a trial de novo.’ ” See also Employers’ Liability Assurance Corp. v. Matlock, 151 Kan. 293, 299, 98 P. 2d 456. It is apparent the order of the district court of Franklin county sustaining defendants’ motion to remand the case to the commissioner for further consideration amounted to a dismissal of defendants’ appeal. No appeal was taken to this court from this order in the time provided by law. The commissoner’s award therefore became final and remained in full force and effect as if no appeal had been taken therefrom. (Hurst v. Independent Construction Co., 136 Kan. 583, 16 P. 2d 540.) Defendants next contend that the award of the commissioner is not final for the reason that he has not reopened the case to consider the deposition of one of defendants’ witnesses, and has not made a new award based upon all the evidence. When the hearing of a claim for compensation has been completed and the compensation commissioner has received and considered all the evidence and made his award thereon, and no appeal is taken from such award, the compensation commissioner does not have authority to grant a rehearing on the claim for compensation, either on his own motion or at the request of one of the parties. The fact that the request is for a more complete hearing does not enlarge the authority of the compensation commissioner to grant a rehearing. (Walz v. Missouri Pac. Rld. Co., 142 Kan. 164, 45 P. 2d 861.) In Hurst v. Independent Construction Co., supra, we said: “A finding or award made by the compensation commissioner in a workmen’s compensation case is final unless an appeal is taken therefrom within the prescribed time, and of the same force and effect as if the finding and award had been affirmed by the district court on appeal, and an appeal regularly taken and voluntarily dismissed by appellant does not affect the finality of the finding or award, the award being subject only to the statutory provisions for its review or modification.” In Walz v. Missouri Pac. Rld. Co., 130 Kan. 203, 285 Pac. 595, this court held that the order of the workmen’s compensation commissioner on August 20, 1929 setting aside his award of August 12, 1929, and directing a rehearing on the claim, was void. It is apparent that the rules of the civil code are not applicable to workmen’s compensation proceedings. There is no provision in the act for motions for rehearing. There is no provision for modification of an award once made by the commissioner except as found in section 44-528, which provides for review, under certain conditions, by the commissioner at any time before, but not after, final payment. When an award has been made by a commissioner, the only recourse for an aggrieved party, aside from the relief afforded by section 44-528, is by appeal to the district court. To permit the commissioner, upon motion of parties or upon his own motion, to reopen a case and vacate or modify an award which he has made would open the way to delays in compensation cases. This is one of the results which the legislature sought to prevent. The commissioner has no power to set aside an award which he has made and grant a rehearing. (Gray v. Hercules Powder Co., 160 Kan. 767, 165 P. 2d 447.) Under the provisions of G. S. 1949, 44-512a, a failure to pay within two weeks after written demand any part of the compensation awarded or any installment thereof when due makes the entire amount of compensation awarded immediately due and payable, and authorizes the workman or any party entitled thereto to maintain an action for the recovery of the entire amount (Bentley v. State Department of Social Welfare, 187 Kan. 340, 356 P. 2d 791; Redenbaugh v. State Department of Social Welfare, 187 Kan. 320, 356 P. 2d 794; Owen v. Ready Made Buildings, Inc., 180 Kan. 286, 303 P. 2d 168; Owen v. Ready Made Buildings, Inc., 181 Kan. 659, 313 P. 2d 267). The fact that an employer’s appeal from the award is pending in the district court does not alter the rule (Bentley v. State Department of Social Welfare, supra). The record discloses that plaintiff’s husband died about March 3, 1956, and that the commissioner made his award January 27, 1959, directing the defendants to pay tire amount of compensation due from March 10, 1956, to January 31, 1959, in the sum of $4,228, to reimburse the plaintiff for $450 in funeral expenses and to pay the installments on the balance of the judgment as they became due. Now, in June of 1961, over five years after the death of plaintiff’s husband, the defendants have, even upon written demand, made no payment whatsoever. This court is unable to visualize any reason for dilatory action and long delay in a workmen’s compensation case. It certainly was not the intent of the legislature in enacting the workmen’s compensation law that such dilatory action and long delay be countenanced. This court does not look with favor upon such conduct. The trial court did not err- in entering judgment for the entire amount of the award. Defendants also contend that the trial court erred in allowing interest on the judgment. G. S. 1949, 44-512a provides that if any compensation awarded or any installment thereof shall not be paid when due, and service of written demand for payment has been made on the person or persons liable to pay the same and payment is thereafter refused or not made within two weeks from the date of service of the demand, then the entire amount of compensation awarded shall become immediately due and payable and the person entitled to such compensation may maintain an action in any court of competent jurisdiction for the collection thereof in like manner as for the collection of a debt. G. S. 1949, 16-201 provides that creditors shall be allowed interest at the rate of six per cent per annum for any money after it becomes due. As stated, the plaintiff, on July 27, 1959, served her written demand for payment of the amount due under the award of the commissioner. Defendants, on July 30, acknowledged receipt of the demand and refused payment. The two weeks after service of plaintiff’s demand as provided by statute expired August 10, 1959, at which time the entire amount of the award became due and payable and constituted a debt against defendants. Plaintiff was therefore entitled to maintain an action to recover the amount due as for the collection of a debt, and the district court, under the provisions of section 16-201, properly allowed interest from the date the entire amount of the award became due and payable. Section 44-512a provides a method chosen by the legislature in an attempt to insure the prompt payment of compensation awards (Bentley v. State Department of Social Welfare, supra, p. 342). The plaintiff contends in her cross-appeal that the trial court erred in failing to allow her reasonable attorney fees under G. S. 1959 Supp., 40-256. This statute provides, in substance, that if it appears from the evidence that any insurance company has refused without just cause or excuse to pay the full amount of a loss, the court, in rendering its judgment against the insurance company, shall allow the plaintiff a reasonable sum as an attorney’s fee to be recovered and collected as a part of the costs. Plaintiff’s contention cannot be sustained as the trial court found in the instant case that under all the facts and circumstances defendant insurance carrier’s refusal to pay could not be said to have been without just cause or excuse, and denied plaintiff’s request. We cannot say that in view of such a finding the trial court erred in refusing the allowance of attorney fees. It follows therefore that the judgment of the trial court should be affirmed as to all three appeals. It is so ordered.	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