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The opinion of the court was delivered by Horton, C. J.: This was an action by the plaintiffs against the defendants, to subject certain real estate held in the name of Lydia A. Stine, to the payment of two judgments obtained by the plaintiffs against her husband, C. A. Stine. Trial by the court, a jury being waived, and judgment for the defendants. The evidence introduced upon the trial is not preserved in the record, and therefore we are compelled to accept as conclusive the findings of fact of the trial court. These findings establish that on April 1,1880, Lydia A. Stine was the owner of a stock of goods and merchandise valued at $3,800, kept in a store building rented of Neil Wilkie, in Douglass, Butler county; that from April 1, 1880, until July 16, 1880, C. A. Stine, the husband of Lydia A. Stine, carried on the business of the store in his own name, with the knowledge and consent of his wife, and retailed goods therefrom in the ordinary manner of retail dealers, and bought goods in his own name of the value of $1,600; that on April 17, 1880, the plaintiffs, who were wholesale merchants at Kansas City, Missouri, sold to C. A. Stine goods to the amount of $538.08 on a credit of sixty and ninety days. Of this, $428.08 was not paid, and for this sum with interest thereon they had judgments of record in the district court of Butler county at the commencement of this action. The goods and merchandise purchased by C. A. Stine from the plaintiffs, with other goods and merchandise purchased by him in his own name, were intermingled with the goods in the store, with the consent of his wife, Lydia A. Stine, and sales were made from the stock by C. A. Stine in his own name, as if he were the owner thereof. During all this time, one or more signs with the name of C. A. Stine were displayed in front of the store, but the name of Lydia A. Stine did not appear upon any sign. On July 16, 1880, the stock of goods in the store, being then of the value of about $3,800, together with the house and lots on which the defendants were living, were exchanged with one John M. Wilson for certain real estate situated in the county of Butler, worth $4,000, which real estate was at once occupied by the defendants and their family as a homestead. The conveyance of this real estate was taken in the name of the wife, Lydia A. Stine. This is the property claimed to be subject to the payment of the judgments. It is sought to bring this case within the principle announced in Long v. Murphy, 27 Kas. 380. In that case, we decided that— “ Where a debtor is insolvent and his creditors are pressing him for the payment of their claims, he cannot, while fully cognizant of his inability to pay his debts, for the purpose of defrauding his creditors transfer the possession of goods purchased by him upon credit and take in exchange therefor land, either in his own name or in the name of his wife, and then claim the same as exempt against such existing creditors.” The facts in this case are not similar to those developed in that, and therefore the decision in that case is not controlling in this. All reasonable inferences are to be indulged in to sustain the judgment of the district court. There is nothing in the findings showing that any of the goods purchased from the plaintiffs were exchanged for the land claimed as a homestead. Sales were continually made from the stock in the store after the purchase of the goods in question, from April 17, 1880, to July 16, 1880, and for aught that appears, the particular goods bought of the plaintiffs, with the class or classes with they were mixed, may have all been disposed of. Further than this, it does not appear that Lydia A. Stine had any knowledge that the goods purchased from the plaintiffs were not paid for. No money derived from the sale of the goods was used in the payment of the homestead, and therefore the plaintiffs trace neither the goods they sold, nor any of the proceeds thereof, to the homestead which they seek to subject to the payment of their judgments. If the stock of goods which C. A. Stine had under his control were his absolutely, the plaintiffs would not be entitled to subject a homestead, obtained by exchanging them for it, to the pay ment of their debts and judgments, if the goods purchased from them upon credit were not exchanged for it and were no part of the purchase consideration. Several of the decisions cited by counsel establish that where a husband has charge of property belonging to his' wife and is permitted by her to represent the property to be -his, and upon such apparent ownership obtains credit, equity will not protect the property from the husband’s creditors. We may fully indorse this doctrine, and go so far as to hold that if the plaintiffs had obtained judgments against C. A. Stine prior to the exchange of the stock of the goods for the homestead, they might have levied thereon for the payment of their claim; but this gives no right to subject the homestead to the payment of their debts. A party may have property subject to execution, but if before there is any levy or lien upon it, such property is exchanged for real estate and actually occupied as a homestead, the homestead is exempt unless existing creditors have rights therein as settled in Long v. Murphy, supra. The judgment of the district court will be affirmed. All the Justices concurring.	[ -16, 110, -15, -114, 42, -30, 42, -104, 105, -96, -92, 115, 9, -64, 65, 121, 107, 13, 81, 105, -58, -73, 7, -29, -46, -13, -101, -35, -79, -39, -92, -41, 73, 48, 74, 29, 70, -32, -41, 92, -118, 32, -87, -32, 89, 96, 60, 47, 114, 74, 17, 46, -13, 42, 28, -53, 72, 44, -21, 57, 113, -15, -86, -41, 93, 22, 19, 36, -100, 7, -56, 46, -112, 49, 3, -24, 115, -76, -122, 116, 111, -119, 12, 102, 99, 33, -123, -17, -68, -116, 47, 118, -123, -89, -96, 89, 66, 73, -66, -99, 125, 18, 3, -10, -30, 14, 25, -4, 9, -114, -74, -110, 13, 60, -102, 11, -45, -91, 48, 65, -57, 32, 125, 23, 56, 59, -114, -3 ]
Per Curiam: The judgment herein will be set aside, and the case remanded for further proceedings. This order is made on the authority of Earls v. Earls, 27 Kas. 538.	[ -78, -4, -44, -100, 42, 97, 33, -103, 64, -31, 117, -47, 47, -46, 20, 113, -25, 111, 85, 115, -35, -73, 30, 81, -29, -13, -109, -41, -77, -20, -17, 126, 77, 112, 66, -43, -58, -127, 77, 84, -122, 9, -104, 108, 97, -72, -80, 123, -48, 79, 33, 87, -29, 42, 93, 18, 104, 40, 105, 73, 65, 121, -101, 5, 111, 5, -79, 38, -100, -122, -40, 46, -100, 49, 1, -24, 112, -92, -122, 84, -21, -69, 40, 66, 98, -128, 76, -17, -104, -38, 5, 122, -65, -121, 10, 88, -53, -29, -74, -99, 124, -76, 6, 62, -18, -59, 95, 36, 31, -113, -58, -77, -97, 56, -38, 18, -30, -125, 48, 21, -52, -78, 90, -53, 19, -109, -122, -14 ]
The opinion of the court was delivered by Horton, C. J.: The justice of the peace issuing the process under which the petitioner is held, was a qualified and acting justice of the peace of Sequoyah county, a municipal township of Ford county, under the provisions of §§ 31 and 32, ch. 72, Laws of 1873, at the time of the passage of the act changing and defining the boundaries of the counties of Hodgeman, Hamilton, Finney, Ford and others, approved February 21, 1883. By § 2 of that act, the county of Finney was formed and bounded in whole or in part of the territory composing the following unorganized counties, viz: All of the territory of Sequoyah county and a part of the territory of Gray, Kearney and Lane counties. ' By § 7 of that act,.§31 of ch. 72 of Laws of 1873 was repealed. The provisions of said. § 31 involved in this controversy, so repealed, are as follows: “That so long as any one of the unorganized counties in the state shall be attached to an organized county for judicial purposes, it shall constitute and form one of the municipal townships thereof, and as such shall be entitled to township officers and all things pertaining to the rights and privileges of a township, and be subject to the same regulations and liabilities as other townships of such county, and its electors shall be deemed legal electors of the county to which it is attached, and the officers of the county to which it is attached shall have the same power and perform the same duties, in reference to such attached county, as they have from the municipal townships of their own county.” With, the creation of Finney county, Sequoyah county ceased to exist; and by the repeal of said § 31, ch. 72, Laws of 1873, Sequoyah township, as a township, also ceased to exist. After the repeal of said § 31, the unorganized counties of the state, although attached to an organized county for judicial purposes, no longer constituted or formed municipal townships. By the repeal of said § 31, such unorganized counties were deprived of township officers and of the rights and privileges of a township. The legislature clearly has the power, directly or through the action of the board of county commissioners of a county, to abolish or wipe out townships; and having this constitutional power, the effect thereof may be to oust the officers of a township so abolished or destroyed from office before the expiration of their term. This would also include the contitutional power to abolish the office of justice of the peace in a township so destroyed. So it is not true, as contended for by the counsel resisting this application, that a justice of the peace may not be ousted from his office before the end of his term. The constitution provides that two justices of the peace shall be elected in each township,, and that their term of office shall be two years — -that is, they may continue officers of such township for two years. If there be no town ship, there are no township offices to fill; and if there are no township offices, there can be no justice of the peace within such territory. When a township is abolished or destroyed, there are no township offices left, for there is neither a constitutional nor a statutory office to fill. When a township is destroyed, the township offices must go with it. (See Division of Howard County, 15 Kas. 194; Hagerty v. Arnold, 13 id. 367.) The mere exercise of the functions of an alleged office will not be sufficient to make a person either a de jure or a defacto officer. From considerations of public policy, the acts of a de facto officer are valid and binding as to the public and third persons; yet where there is no office, constitutional or statutory, a person, by pretending to exercise an office unknown to the law, cannot be deemed to be an officer defacto. There can be no de facto officer where there is no office. The case of Borton v. Buck, 8 Kas. 302, and §§ 48 and 49, ch. 110, Comp. Laws of 1879, have no application. By the repeal of said § 31 of ch. 72, municipal townships in unorganized counties were wholly wiped out. (Laws of 1883, eh. 70, § 7; Laws of 1873, eh. 72, § 31.) As neither the justice issuing the process under which the petitioner is' restrained of his liberty, nor the constable who has the- custody of him, are officers of any municipal township, de facto or otherwise, such restraint is wholly illegal. If the repeal of said §31, ch. 72, Laws of 1873, by the legislature of 1883, was the result of hasty legislation, the same legislature, at its special session, has attempted to repair the wrong by attaching Finney county to Ford for judicial purposes, and by reenacting substantially the. provisions of said §31. (Laws of 1884, pp. 20, 21.) The petitioner will be discharged. All the Justices concurring.	[ -80, -19, -11, -20, 10, 64, 16, 20, 90, -77, 97, 115, 41, -102, 5, 123, 115, 125, 85, 104, -10, -10, 19, 99, 19, -13, -49, -34, -77, 68, -10, -41, 73, 32, 74, -99, -58, 108, -57, -36, -50, 6, -87, -23, 88, 0, 60, 55, 34, 15, 85, 42, -13, 46, 49, -29, -88, 44, -39, -84, 17, -15, 62, -123, 127, 12, 19, 2, -120, -121, -8, 46, -111, 53, 80, -4, 83, -90, -122, -12, 45, -103, 44, 102, 107, 17, -68, -19, -8, -40, 30, -6, -99, -25, -107, 25, -21, 8, -74, -103, 125, 80, 3, -4, -25, 5, 88, 108, -83, -118, -124, -109, -49, 60, -120, 67, -29, 35, 16, 81, -60, -10, 117, -25, 48, -37, -121, -40 ]
The opinion of the court was delivered by .Brewer, J.: The question in this case is as to the validity of a certain ordinance of the city of Newton, providing for the levy and collection of a license tax. It is the same ordinance which was presented in the case of MoGrath v. City of Newton, 29 Kas. 364. In that case certain technical objections to the validity of the ordinance as a whole were considered and disposed of. But a full inquiry into all the questions discussed by counsel was declined, on the ground that by reason of a manifest misjoinder of causes of action the ruling of the district court was correct. The plaintiffs in the present case, defendants in, error here, were all hardware merchants, and within the rule laid down in McGrath v. City of Newton, could properly join as plaintiffs in this action. They challenge the'validity of this ordinance so far as it imposes upon their business, that of hardware merchants, a license tax. Some questions of practice are presented and discussed, but we shall not stop to consider them, preferring to address our inquiry to those which are substantial and fundamental. The first section of the ordinance contains all the facts necessary to a full understanding of the questions involved. That section reads: “That a license tax per annum is hereby levied upon all merchants or persons engaged in merchandising, as follows, to wit: Five dollars upon all persons whose average amount of stock does not exceed one thousand, and two dollars and fifty cents in addition thereto for every one thousand dollars or fractional part thereof in excess of the first thousand dollars.” Before noticing some specific objections which are made to this particular tax, we think it proper to state certain general propositions which underlie this matter of a license tax. First. In the absence of any inhibition, express or implied, in the constitution, the legislature has power, either directly to levy and collect license taxes on any business or occupation, or to delegate like authority to a municipal corporation. This seems to be the concurrent voice of all the authorities. In 1 Dillon on Municipal Corporations, 3d ed., § 357, note, the author says: “Unless specially restrained by the constitution, the legislature may provide for the taxing of any occupation or trade, and may confer this power upon municipal corporations.” In Burroughs on Taxation, page 148, is this language: “Where the constitution is silent on the subject, the right of the state to exact from its citizens a tax regulated by the avocations they pursue, cannot be questioned.” In Savings Society v. Coite, 6 Wall. 606, the supreme court of the United States thus states the law: “Nothing can be more certain in legal decision than that the privileges and franchises of a private corporation, and all trades and avocations by which the citizens acquire a livelihood, may be taxed by a state for the support of the state government.” (Hamilton Co. v. Massachusetts, 6 Wall. 638; Cooley on Taxation, 384 to 392, 410.) On page 384 the author observes. “The same is true of occupations; government may tax one, or it may tax all. There is no restriction upon its power in this regard unless one is expressly imposed by the constitution.” In State Tax on Foreign-held Bonds, 15 Wall. 300, Field, J., among other things, speaking of the power of taxation, says: “It may touch property in every shape, in its natural condition, in its manufactured form, and in its various transmutations. And the amount of taxation may be determined by the value of the property, or its use, or its capacity, or its productiveness. It may touch business in the almost infinite forms in which it is conducted; in professions, in commerce, in manufactures, and in transportation. Unless restrained by the constitution, the power as to the mode, forms and extent of taxation is unlimited.” (See also the authorities collected in Fretwett v. City of Troy, 18 Kas. 274.) Nor does this rest alone upon a mere matter of authority. Full legislative power is, save as specially restricted by the constitution, vested in the legislature. Taxation is a legislative power. Full, discretion and control therefore in reference to.it are vested in the legislature, save when specially .restricted. There is no inherent vice in the taxation of avocations. On the contrary, business is as legitimate an object of the taxing power as property. Oftentimes a tax on the former results in a more even and exact justice than one on the latter. Indeed, the taxing power is not limited to either property or avocations. It may, as was in fact done during the late war and the years immediately succeeding, be cast upon incomes, or placed upon deeds and other instruments. We know there is quite a prejudice against occupation taxes. It is thought to be really double taxation. Judge- Dillon well says that “such taxes are apt to be inequitable, and the principle not free from danger of great abuse.” Yet, wisely imposed, they will go far toward equalizing public-.burdens. A lawyer and a merchant may, out of their respective avocations, obtain the same income. Each receives the same protection and enjoys the same benefits'of society .and government. Yet the one having tangible property pays taxes; the other, whose property is all in legal learning and skill, wholly intangible, pays nothing. A wisely-adjusted occupation tax equalizes these inequalities. But after all, these are questions of policy, and for legislative consideration. It is enough for the courts that both occupation and property are legitimate objects of taxation; that they are essentially dissimilar; that constitutional provisions regulating the taxation of one do not control.that of the other; and that there are no constitutional inhibitions on the taxation of business, either by the legislature directly, or by municipal corporations thereto empowered by the legislature. Second. There is no'inhibition, express or implied, in our constitution, on the power of the legislature to levy and collect license taxes, or to delegate like power to municipal corporations. It is not pretended that there is any express inhibition. It has been contended that §1, art. 11, creates an implied inhibition, and this because it reads that “the legislature shall provide for a uniform and equal rate of assessment and taxation.” But that section obviously refers to property, and not to license taxes. In Hines v. City of Leavenworth, 3 Kas. 200, this court said: “It will be observed that the constitution does not in terms require that the property in the state should be taxed according to its value, but it must be apparent to everyone that such was the intention of the constitution-makers. Taxes cannot be levied by an equal and uniform rate, except upon the value.” In Burroughs on Taxation, § 54, referring to the various provisions in the different constitutions as to uniformity and equality, the author adds: “These provisions, as a general rule, are held to apply to property alone, and not to include taxation on privileges or occupations.” Sedgwick, in commenting upon this subject, says: “In construing these provisions, it has been held, in many of the states, that the words ‘equal’ and ‘uniform’ apply only to a direct tax on property, and that the clause in regard to uniformity of taxation does not limit the power of the legislature as to the objects of taxation, but was only intended to prevent an arbitrary taxation, according to the kind or quality, without regard to value. Specific taxes have therefore been sustained as a valid exercise of the legislative power.” (See Sedg. on Stat. and Const. Law, 2d ed., 504^507.) In Baker v. City of Cincinnati, 11 Ohio St. 540, the supreme court, upon kindred constitutional sections, makes these observations: “Now neither of these sections, in terms, prohibits granting licenses and making a charge therefor, or the imposition of a tax on a license. The second section requires the taxing of all property by a uniform rule. . A license cannot be re garded as property. (Exchange Bank v. Hines, 3 Ohio St. 1-7.) It is not, therefore, to be taxed as property under that section. An express direction to impose a tax on all property by a uniform rule does not necessarily exclude taxation upon that which is not property, or cover the whole ground included within the limits of the taxing power. (City of Zanesville v. Richards, 5 Ohio St. 589, 593.)” See also Walcott v. The People, 17 Mich. 68; Kitsen v. Mayor, 26 Mich. 325; City v. Sternberg, 4 Mo. App. 453; same case, 69 Mo. 289; City v. Green, 7 Mo. App. 468; Glasgow v. Rowse, 43 Mo. 490; Express Co. v. St. Joseph, 66 Mo. 675; Sacramento v. Stage Co., 12 Cal. 134; Sacramento v. Crocker, 16 Cal. 119; Ex parte Hurd, 49 Cal. 557; Slaughter v. Commonwealth, 13 Gratt. 767; Commonwealth v. Moore, 25 Gratt. 951; Mayor, &c., v. McWilliams, 52 Ga. 251; Henry v. The State, 26 Ark. 523; Anderson v. Kerns’s Draining Co., 14 Ind. 199; Osborne v. Mayor, &c., 44 Ala. 493; Ex. Co. v. Mayor, &c., 49 Ala. 404; Mason v. Trustees, 4 Bush, 406; Meriam v. City, 14 La. An. 318; Goldsmith v. City, 31 La. An. 646; Sears v. West, 1 Murph. N. C. 291; Comm’rs v. Patterson, 8 Jones N. C. L. 182; City of Leavenworth v. Booth, 15 Kas. 635; Fretwell v. City of Troy, 18 Kas. 271; Francis v. Rld. Co., 19 Kas. 303. Passing now to some specific questions raised as to this particular tax, we remark — Third. That §3 of chapter 40, Laws of 1881, gives express authority to levy and collect license taxes on certain occupations. In the case of Fretwell v. City of Troy, supra, we expressed the same opinion in reference to a similar section. Counsel in this case call our attention specifically to. the matter, and urge a reexamination. We have made such reexamination. We think our former opinion correct, and that there are additional reasons why the same construction should be given to the section now in question. The language of the section seems plain. It reads, “The city council shall have exclusive authority to levy and collect a license tax on auctioneers,” etc. We cannot see how language can be plainer. Every part of the sentence points toward this power. The verbs used are “ levy and collect,” words generally used in reference to taxes, and not very apt in respect to mere licenses. The city is authorized to levy and collect a license tax. The principal word here is “tax,” and the term “license” simply qualifies and describes it. Where nothing but license is contemplated, the language ordinarily is direct, and grants power “ to license,” or “ to license and regulate,” or “ to adopt rules and regulations for licensing.” But again, the case of Fretwell v. the City of Troy, supra, was decided in 1877. It gave construction to the words “levy and collect a license tax.” With that construction before them the legislature in 1881 enacted this § 3, containing these words. Is it not clear that, knowing the construction which had been given to them, the legislature by using them intended to grant this power to the city? Fourth. The validity of the tax is challenged on the ground that in the charter there has been no compliance with § 5, art. 12 of the state constitution, which reads: “ Provision shall be made by general law for the organization of cities, towns, and villages; and their power of taxation, assessment, borrowing money, contracting debts and loaning their credit, shall be so restricted as to prevent the abuse of such power.” It is said that the charter contains no restriction with respect to these license taxes. If it were true that there was absolutely no restriction, it might well be held that the power was not granted; and yet there are very respectable authorities, and indeed the weight of authority seems to be to the effect, that it is purely a matter of legislative discretion. In 1 Dillon on Municipal Corporations, 3d ed., § 50, the author, after quoting from the constitution of New York a section similar to the one in our constitution, observes: “This obviously enjoins upon the legislature the duty.of providing suitable and proper restrictions upon the enumerated powers; but in what these restrictions shall consist, and how they shall be imposed, are subjects left to the discretion or sense of duty of the legislative department, with the exercise of which the courts cannot interfere.” In Hill v. Higdon, 5 Ohio St. 248, the court, by Ranney, J., says that a failure of the legislature to observe these constitutional requirements “may be of very serious import, biit lays no foundation for judicial correction.” In Cooley on Taxation, page 252, we find the law thus stated: “By some state constitutions it is expressly made the duty of the legislature, in conferring local powers of taxation, to impose restrictions on the power in order to prevent its abuse. Such a provision is addressed to the discretion of the legislature, which will impose such and such only as are deemed advisable.” See also the authorities cited in the note, as well as those in the note to the quotation from Dillon, supra. But this constitutional provision has been before this court, and has here received a judicial construction. (Hines v. City of Leavenworth, 3 Kas. 203.) In that case, while the necessity of some restriction was insisted upon, it was held that full discretion as to what restrictions should be imposed was left to the legislature; and that the court would not interfere even though of the opinion that the restrictions were not sufficient to prevent abuses. In that case two or three restrictions of a very trivial nature were adjudged sufficient. . Here it is provided that no tax shall be levied except by ordinance, that such ordinance must receive a majority of all the votes of the councilmen elected, and that the vote must be taken by yeas and nays, and entered upon the record of the proceedings of the council. It is true there is no restriction on the amount of tax which may be levied; no more was there in the ease in 3 Kas., supra. Instead of being a direct, in that ease as well as this, there is only, so to speak, an indirect restriction, and yet if the legislature deems this indirect restriction sufficient, it is not for the courts to ignore it and say it amounts to nothing. As the mayor and councilmen are citizens, and therefore interested in the welfare of the city; as their term of office is brief, and for any attempted misconduct the citizens have thus a speedy relief, and by new officers can largely correct any wrong in the matter of excessive taxation; and as each man’s responsibility is not only fixed but made public by the necessity of a record of his vote, it is evident that some restriction at least is' secured by the provisions of the charter, and whether adequate or not, the courts may not interfere. Further, the mayor and councilmen, who alone order the levy of these taxes, do not acquire unlimited control in the expenditure of the moneys thus raised, for they are by the same charter made personally liable for any moneys appropriated contrary to law; This also furnishes a check. The money when collected does not come into their hands. They can only direct its expenditure in certain specified ways, and are personally responsible for any illegal appropriation. Surely by these provisions the legislature has done something to-guard against excessive taxation, and placed some restrictions-to prevent an abuse of that power. Therefore this objection to the validity of this tax also fails. Fifth. It is finally objected that this tax is in effect a property tax, and therefore void. This is based upon the language of the section heretofore quoted. The tax upon merchants is graduated by the average amount of stock. If that average does not exceed $1,000, the tax is $5 per annum, and for each $1,000 or fractional part thereof in excess, $2.50. Therefore, being graduated by the amount of property, it is in substance and effect only a property tax. This is the-difficult question in the case. The argument is, that the law regards substance rather than form; that you may not do indirectly what you cannot do directly; that it would be clearly invalid to levy a tax on a merchant’s property of five mills — that being the levy on all other taxable property— and then impose a second tax of five mills on his property alone. If this cannot be done by a direct tax on his property, it cannot be done indirectly by calling the second tax one on business. The language of the ordinance is similar to that in the general tax law, and the tax is in each case graduated by the average amount of stock. While the right-to graduate a business tax may be conceded, yet the graduation must be by some standard which is a fair criterion of the amount of business. The amount of stock is not such a criterion, for though one man’s stock may be large, his sales may be few and his business limited; while another whose stock averages much less may do a much larger business, selling and replacing with greater rapidity. The amount of stock may be a test of property, but not of business. In support of these views, counsel cite the following authorities: Livingston v. City of Albany, 41 Ga. 21; Commonwealth v. Stodder, 2 Cush. 572; Durham v. Trustees, 5 Cow. 466; Mayor v. Rld. Co., 32 N. Y. 373; State v. Rld. Co., 40 Md. 22; State v. Rld. Co., 4 S. C. 376; Orleans v. Pierre Nongues, 11 La. An. 740; Burroughs on Taxation, 69 and 70; Bank-Tax Case, 2 Wall. 200; Cooley on Taxation, page 164. But notwithstánding the plausibility of this argument, we are constrained to think it not sound. The tax provided by this ordinance is in terms a tax upon business. The results of a tax do not determine its character. , Every license tax compels the party to pay more taxes than his taxable property justifies. A merchant and a farmer have each $5,000. The property tax on each is the same. Any license tax imposed on the former increases his total taxes above the amount properly chargeable on $5,000. Yet this does not make the license tax a tax on property. Indirectly one’s property may be affected. It will be diminished by so much as is necessary to pay the license tax. The argument of counsel carried to its final results makes' against the validity of all license taxes. Again, graduation in the matter of license taxes is hot only supported by the authorities, but is also eminently just. A license tax which is the same on a merchant doing an annual business of $5,000 as upon one doing a like business of $1,000,000, strikes anyone as unjust, and as distributing the public burdens very unfairly. It may be said that the property tax, being proportioned to the amount of property, equalizes burdens, and that both, engaged in the same business, should pay the same business tax. But the principles that justify the graduation in property, apply in business taxes. The larger the business, the greater protection the and benefit of organized society and government. And if graduation is permissible, then any standard or rule of graduation may be adopted which is reasonably fair and j fist. And the fact that the same standard is adopted which is used in other taxation does, not change the character of the tax. Because a license tax is proportioned in the same manner as a property tax, it does not therefore cease to be a license tax. And that is really the point of counsel’s argument. This license tax is graduated as property taxes are graduated. Therefore it is a property tax. The reverse argument would be just as logical, and demonstrate as forcibly, that all property taxes are simply license taxes. The rule of graduation adopted in this case may not be absolutely perfect. The amount of stock does not necessarily determine the amount of business. And yet it is ordinarily a fair criterion. And some objection can be made to any standard suggested. If the amount of sales is named, it can be objected that in some cases profits are large and in others small, so that one with the larger income may pay the smaller business tax. If profits are named, then, as out of a single transaction or two large profits may sometimes be made, one who really does very little business may be charged with a large business tax. Besides, profits are so largely a matter of the merchant’s personal knowledge and of his alone, that it would be difficult to practically enforce such a standard with any degree of accuracy. It is hard enough to enforce one based upon the average amount of stock, and yet that is a visible fact. No standard will in all cases be found absolutely perfect and securing equal and exact justice. And while we think the amount of sales would be a fairer standard, yet the amount of stock cannot be pronounced entirely arbitrary and with no reasonable relation to the fact to be determined. It cannot be adjudged that a license tax graduated thereby is by reason thereof invalid. We shall close this with a brief notice of some of the authorities cited. In the case from 41 Ga., supra, the tax imposed was $1 on each and every horse or mule offered and sold by or belonging to a horse or mule drover within the city. It was held to be a property and not a license tax, but it was a tax levied directly upon the property — each and every mule or horse offered or sold. The case from 2 Cushing simply decides that the power to license and regulate does not carry with it the power to tax. To the same effect are the cases from 5 Cowen and 32 N. Y. The cases from 4 S. C. and 40 Md. seem to be cases in which the tax was laid directly upon the property. In the case in 2 Wallace, the court held that a tax on the capital of a national bank was a tax on its property, and as that property consisted in United States stock, exempt from taxation, the tax was invalid. That was a case of a direct tax upon property. The case of Orleans v. Nongues, 11 La. An. 740, is apparently more to the point. The ordinance levying the tax in question there, reads as follows: “On each and every person keeping a dairy within the limits comprised between the upper line of this parish and Verret avenue, a yearly tax of $2 for each and every cow, payable semi-annually in advance, $2 per cow.” The court held this bad, because of the discrimination, not taxing all dairymen, but only those within certain limits. This point settled and disposed of the case, and it was unnecessary for the court to consider any other-question ; but it appears, from the opinion, that counsel for the parish, or city, defended the legality of the tax, upon the ground that it was a tax upon property and not a tax upon person's pursuing an occupation. The court held that, taking that view of it, the police jury had no authority to-levy the tax. We do not understand the court as squarely deciding that this was a property tax, and yet the language-of the ordinance certainly leaves it a very doubtful question. See, in connection with this case, the opinion of the same-court in 14 La. An., supra. From Cooley on Taxation, 164, counsel quote the following: “There is a sense, however, in which duplicate taxation may be understood — and which, we think, is the proper sense — which would render it wholly inadmissible under any constitution requiring equality and uniformity in taxation. By duplicate taxation, in this sense, is understood the requirement that any person or any subject of taxation shall directly contribute twice to the same burden, while other subjects of taxation belonging to the same class are required to contribute but once. We do not see, for instance, how a tax on a merchant’s stock, by value, could be supported, when, by the same authority and for the same purpose, the same stock was taxed by value as a part of his property. This is a very different thing from one tax upon property and another upon the business, though the latter may indirectly reach the property; here is no circumlocution, no question of the ultimate effects, but a tax levied twice on the same subject, only under a different name.” We do not understand this as meaning what they claim, but as simply holding that there cannot be two direct taxes upon the same property, it being listed and described under different names. We think that the latter part of the quotation makes the author’s meaning clear. See also the note to page 139, .in which he says: “A law which should make no discrimination in the taxation of business, we should say would in some cases produce the grossest injustice and inequality; and it may be seriously questioned whether the requirement of uniformity in the taxation of business could be understood as forbidding the classification of those engaged in the business; for example, underwriters, by the business done or premiums received; merchants, by the capital invested or the sales made, etc., and the apportionment of taxes accordingly.” So also, on pages 384 and 385, he says: “The methods in which business should be taxed are also in the legislative discretion. The taxes which are most customary are: (1) On the privilege of carrying on the business; (2) on the amount of business done; (3) on-the gross profits of the business; (4) on the net profits, or profits divided. But the tax may be measured by other standards prescribed for the purpose, as well as by them.” In Simmons v. The State, 12 Mo. 268, the court held that a license tax on lawyers might be graduated. (See also City of Burlington v. Insurance Co., 31 Iowa, 102; Mares v. Erwin, 8 Humph. 290; Osborne v. Mayor, &c., 44 Ala. 498; Ex. Co. v. Mayor, &c., 49 Ala. 404; Ould v. City of Richmond, 23 Gratt. 464; Commonwealth v. Moore, 25 Gratt. 951; Sacramento v. Crocker, 16 Cal. 119.) This last was a case where the license was graduated by the amount of monthly sales, and the tax was sustained. We have prolonged this opinion as far as is necessary. Our conclusion is that the tax cannot be held unconstitutional and invalid. Therefore the courts may not interfere to restrain its collection. If unwise or impolitic, the people can soon put a stop to it and correct any mistake which their officers may make in this respect. The judgment of the district court will be reversed, and the case remanded with instructions to sustain the motion to dissolve and vacate the order of injunction. Horton, C. J., concurring.	[ -16, -6, 116, -68, 26, 98, 34, -104, 89, -95, -91, 115, -83, -102, 20, 113, -5, 125, 80, 75, -12, -74, 7, 106, -76, -13, -101, -43, -79, 79, -26, -1, 76, 49, -54, -35, 102, -54, -123, -36, -50, 11, 9, -63, -7, 64, 52, 106, 114, 11, -15, -115, -13, 40, 24, -61, 41, 44, 75, 53, -47, -16, -72, -99, 95, 7, -79, 54, -104, -57, -8, 46, -104, 57, -56, -24, 123, -92, -122, -44, 109, -7, -83, 98, 99, 1, 41, -17, -40, -120, 14, -37, 45, -90, 20, 25, 34, 0, -98, -97, 116, 2, -121, 126, -10, 21, -97, 124, 13, -114, 84, -95, -125, 118, 18, -63, -49, -125, 16, 113, -57, 30, 95, 103, 58, 27, 6, -36 ]
The opinion of the court was delivered by Valentine, J.: Casper Baehler sued the Consolidated Ranch Company of Kansas City, to recover a balance which he claimed was due him for work, labor and materials furnished in the construction of a stone cellar, or silo, for the company. The case was tried by the court and a jury, and the jury found a general verdict in favor of the plaintiff and against the defendant for $1, and made certain special findings of fact. From the special findings of fact, it appears that the plaintiff was to construct two cellars, or silos, for the defendant, for which he was to receive as compensation, either $3,100 or $3,130; that he constructed only one; that that one was not constructed in accordance with the contract, nor in a good, workmanlike manner, nor with good mortar fit for such construction. The defendant paid the plaintiff, during the prosecution of the work, $1,592.53, and released the plaintiff from building the second silo, and agreed to pay the plaintiff $300 for not constructing the same. The jury were also asked to state the value of the silo which the plaintiff constructed, in the following words, to wit: “State the value of the silo on the said farm, taking in consideration the manner in which, and the materials of which, it was built.” The jury answered, “Don’t know.” The plaintiff objected at the time to all the questions propounded to the jury, and afterward both parties objected to the answers as given, and asked the court to require the jury to answer all the questions fully and definitely, and objected to the discharge of the jury until such questions were answered fully and definitely; but the court overruled all the foregoing objections, received the verdict and special findings, and discharged the jury, to which both parties at the time excepted. Each party then filed a motion for a new trial, and the defendant also filed a motion for judgment on the special findings of the jury. The court sustained the latter motion, and overruled the plaintiff’s motion for a new trial; and’ the defendant then withdrew its motion for a new trial, and the court rendered judgment upon the special findings of the jury, in favor of the defendant and against the plaintiff, for costs; and the plaintiff, as plaintiff in error, now seeks to have such judgment reversed by petition in error in this court. None of the evidence introduced on the trial, nor any part of the instructions given by the court to the jury, has been brought to this court; but the parties have agreed, as shown by the case made and brought to this court, that “there was evidence pro and cori at the trial to each question so submitted” to the jury. Hence all the questions so submitted to the jury should have been answered fully, fairly and definitely by the jury. The burden of proof, of course, rested on the plaintiff; and in order to entitle him to recover anything, it was necessary for him to prove affirmatively the facts of his case. Now supposing that the defendant did not suffer any damage by reason of the silo being constructed in the manner in which it was constructed, and supposing that the sum of $300 of the $1,592.53 paid by the defendant to the plaintiff was paid in order to induce the plaintiff not to build the second silo; still, in order to enable the plaintiff to recover anything from the defendant, it was necessary for the plaintiff to show affirmatively that the silo constructed by the plaintiff was actually worth more than $1,292.53. Did the plaintiff show this? From the findings of the jury, and the action of the court below thereon, it would seem that he did not. It is true the jury found a general verdict in favor of the plaintiff for $1, thereby saying in effect that the silo was worth $1 more than $1,292.53; or possibly that it was worth $1 more than all that the defendant had paid for it, whatever that sum might be, and all damages sustained by the defendant. But in their special findings they said in substance and unmistakably that they did not know what the silo was worth. Upon these apparently conflicting findings we do not think that the plaintiff was entitled to a judgment in his favor — nor did he ask it; but he did ask to have the findings made more complete, and afterward moved for a new trial; and the only questions now involved in the case are, whether he was entitled to have the findings made more complete, and, failing in that, to be granted a new trial. We think both parties were entitled to have the findings of the jury made more complete. The question as to the value of the silo was one of the most important questions of fact in the case. Indeed, it was the most important contested question of fact, and the parties were entitled to know what the silo was worth. The parties have agreed that “there was evidence pro and con at the trial to each question” submitted to the jury, and hence it cannot be said that there was no evidence introduced to prove the value of the silo. Now if the jury had found that the silo was worth $1 more than $1,592.53, and possibly if they had found that it was worth $1 more than $1,292.53, a judgment should have been rendered in favor of the plaintiff and against the defendant for the $1, as found by the jury in their general verdict; and, of course, if the jury had found that the silo was not worth more than $1,292.53, then the judgment should have been rendered in favor of the defendant and against the plaintiff, as it was rendered. We think, for the failure of the jury to make a full and definite finding with regard to the value of the silo, and for the failure of the court to require them to do so, the plaintiff was entitled to a new trial. The judgment of the court below will be reversed, and the cause remanded for a new trial. All the Justices concurring.	[ -15, 104, -103, -35, 28, -32, 42, -38, 89, -95, -74, 87, -55, -34, 4, 115, -74, 125, 84, 122, -62, -77, 3, -31, -46, -13, -47, -59, -79, 104, -76, -44, 77, 36, 66, -43, -30, -64, 65, 92, -114, 6, -117, -24, -37, 0, 52, 122, 50, 75, 49, -114, -13, 37, 29, -61, 13, 44, 59, 61, 81, -8, -82, 5, 93, 22, -94, 34, -106, -57, -40, 30, -104, 53, 9, -56, 83, -74, -122, 116, 67, -85, 44, -90, 99, 19, 29, -49, 124, -104, 47, -1, -115, -25, 17, 88, 2, 41, -66, -99, 112, 22, -122, 126, -19, 21, 93, 108, 3, -121, -16, -125, -113, 112, -98, -111, -53, -89, 35, 97, -51, -94, 92, 69, 123, -101, -113, -13 ]
The opinion of the court was delivered by Fromme, J.: The plaintiff, Zona Fisher, appeals from an order of the trial court setting aside a plaintiff’s verdict for $7,000 and entering judgment for defendant, Sears, Roebuck & Company. We will continue to refer to the parties as plaintiff and defendant. This court on appeal has one controlling question before it. Did the trial court properly set aside a verdict in favor of plaintiff and enter judgment in favor of defendant at the close of a jury trial? There is no more difficult thing for a lawyer to explain to his client than that which happened in this case. A verdict was handed down by the jury after a trial but the court then ruled the plaintiff was not entitled to that verdict as a matter of law. The explanation lies in the application of the law to the particular facts of the case, and generally not in any failure of plaintiff’s lawyer. However, this is of little consolation to the lawyer or his client. K. S. A. 60-250 (b), in pertinent part, reads: “Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. A party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; ... If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. This statute was enacted to facilitate the orderly administration of justice with dispatch. It permits the trial to proceed to a conclusion and then a judge is permitted to reconsider these motions. The statute does not give a trial court free reign to substitute its judgment for that of a jury. (Gard v. Sherwood Construction Co., 194 Kan. 541, Syl. ¶ 8, 9, 400 P. 2d 995; Striplin v. Kansas Gas & Electric Co., 204 Kan. 324, 461 P. 2d 825.) The standard to be used in measuring a defendant’s motion for a directed verdict or for a judgment notwithstanding the verdict is the same. The question to be asked is whether there is any substantial evidence to sustain a verdict and judgment for plaintiff. Such motions should be sparingly and cautiously granted. (Striplin v. Kansas Gas & Electric Co., supra; Swearngin v. Sears Roebuck & Company, 376 F. 2d 637 [1967].) In Striplin it was said the rule is simple but its application is perplexing, for it is always subject to the human equation. In passing on a motion for directed verdict the evidence must be viewed in a light most favorable to the opposing party (in this case the plaintiff). (See Christopherson v. Humphrey, 366 F. 2d 323 [10 Cir. 19661.) Defendant in this case moved for a directed verdict at the close of plaintiff’s evidence and again at the close of all evidence in the case. Roth motions were denied. The trial proceeded and a ver diet was returned. The defendant filed a motion to set aside the verdict and enter judgment for defendant. This motion was taken under advisement and then sustained. The procedural requirements set forth in K. S. A. 60-250 (b) were complied with. So our concern on appeal is with the sufficiency of the evidence. The propriety of granting or denying a motion for a directed verdict is tested by the same rule on appeal as in the trial court. The trial court is required to view the evidence and inferences therefrom most favorable to the party against whom the motion is made. The appellate court must do the same. (Striplin v. Kansas Gas & Electric Co., supra; see also Springfield Tent & Awning Co. v. Rice, 202 Kan. 234, Syl. ¶ 1, 447 P. 2d 833.) The credibility of witnesses is no concern of the court on a motion for directed verdict. (2B Barron & Holtzoff, Federal Practice and Procedure, § 1075, p. 385.) We turn to the facts in evidence. The plaintiff went to the Sears, Roebuck & Company store located at the White Lakes Shopping Center in Topeka to exchange a garment. Plaintiff was 78 years of age and alone when she entered the store. After inquiry she learned the store did not have the proper size of garment in stock. She was advised where a cash refund might be obtained and she was directed to take the escalator to the second floor to obtain it. On the way to the escalator she stopped to look at dresses in the ladies ready-to-wear department. The dresses were displayed in long double rows hung on display racks. At the end of each display rack and facing the main aisle was a platform on which a life-size mannequin stood. The aisle between the display racks had a clearance of 30 inches between the dresses and between the low display platforms at the end. The area where the dress racks and the display platforms were placed was carpeted. The display platforms were painted a light color. The carpet below was of a darker contrasting color. The tops of the display platforms were 8 or 9 inches from the floor. The main aisle at the end of the dress display was approximately 8 feet wide and floored with light colored tile. The display platforms were set back in the carpeted area 8 or 9 inches from the main aisle. The entire area was well-lighted. Plaintiff testified she walked along between the dresses which were hanging on the racks until she approached the main aisle. She was looking up and away from where she was in order to locate the escalator. When she was about 2 feet from the front of the dis play rack she turned to her right and stumbled over the corner of the display rack. She fell into the main aisle and received substantial injuries. In a well reasoned memorandum opinion the trial court stressed the following facts pertinent to his decision: “After careful consideration of all the evidence, the Court is convinced that the evidence with respect to negligence on the part of defendant was clearly insufficient as a matter of law to warrant submitting plaintiff’s case to the jury. “The displays in question consisted of a platform with a high back attached at a right angle to the platform. Mannequins were placed upon the platforms. The displays faced upon a wide, well-lighted corridor. Clothes racks were attached to the backs of the displays which were placed in such a way as to form an aisleway between racks and displays through which customers could walk. A number of such displays were in use at the time of plaintiff’s accident. “Due to the fact that the backs of the displays were the same width as the platforms, there was no basis in the evidence for plaintiff’s contention that defendant had placed low platforms so as to protrude into the aisleway (formed by the displays). The displays, themselves, formed the aisleway and anyone traversing it in the same direction as the plaintiff would have been confronted by the high back of the display before coming into contact with the platform. If a business invitee had walked with sufficient clearance to avoid the high back, he would also have avoided the platform (which plaintiff contended caused her fall) unless he changed his course by veering into the corner of said platform which was in full view. “The display was in no way defective. It was fully visible and nothing about it could be said to be hidden from view. The metal legs supporting the platform were set back under the platform in order to avoid contact with customers. The color of the platform was white and, therefore, contrasted with the brown carpet on the floor. The evidence further indicated that the store lights were on and the displays fully illuminated. “The instant case is clearly distinguishable from those cases in which debris or a foreign substance on a floor created a dangerous condition (e. g. piece of meat, grease, piece of lettuce, etc.). In the case at bar there was nothing about the display which constituted a hidden defect, an unusual circumstance or a dangerous condition. Said display was where it was supposed to be and was utilized in a customary and obvious manner. The Court, therefore, concludes that there was insufficient evidence that the display in question created a dangerous condition on defendant’s premises. “Furthermore, there was no evidence that the use of such a display fell below the standard of ordinary care in the merchandising industry. The injury of plaintiff in connection with said display was not reasonably forseeable, and it cannot be said that the utilization of said display in defendant’s store constituted a violation of defendant’s duty to plaintiff to exercise ordinary care. “Any contention on the part of plaintiff that she was subjected to an un reasonable risk of harm as a result of defendant’s attractive display, was expressly rejected by plaintiff’s own testimony. Said plaintiff testified that she was not looking at the display or the mannequin but was in fact looking for the escalator.” The law regarding the duty of those engaged in a retail business to keep the premises reasonably safe has been iterated in many of our cases. The proprietor of a store owes a duty to customers and other invitees to use care to keep the premises in a reasonably safe condition. (Knowles v. Klase, 204 Kan. 156, 460 P. 2d 444.) A store proprietor is not an insurer of his customers’ safety. (Steinmeyer v. McPherson, 171 Kan. 275, 232 P. 2d 236; Little v. Butner, 186 Kan. 75, 348 P. 2d 1022.) A store proprietor may be required to put up warning signs or install guardrails to protect customers from a particular condition if it creates a latent danger which would otherwise expose customers to an unreasonable risk of injury. (Marietta v. Springer, 193 Kan. 266, 392 P. 2d 858.) However, there is no duty to warn or protect by guardrails if the object or condition causing the injury is normally present in similar stores, and if it is plainly visible and can be anticipated and avoided by the use of reasonable care on the part of the customers. (George v. Ayesh, 179 Kan. 324, 295 P. 2d 660.) In reviewing the many cases in this area it appears there is a sharp division of authority as to liability for injuries resulting from tripping over an object protruding into an aisle or passageway. (See Anno. 26 A. L. R. 2d 675.) However, when injuries are caused from a customer failing to observe and avoid some piece of standard equipment properly placed, well-lighted and used in the store, the rule is generally against recovery. (See Anno. 33 A. L. R. 181, at p. 188, and 162 A. L. R. 958.) The plaintiff in the present case is confronted with evidence about which there is no dispute. She tripped over a display platform on which was located a life-size mannequin. It was located in a well-lighted area, did not protrude into the aisle and was plainly visible to anyone using the premises. It was a display appliance normally used in such stores and by the use of reasonable care she could have anticipated and avoided it. There was no evidence the proprietor failed to keep the premises, including the display appliance, in a reasonably safe condition to prevent injuries to customers. Therefore, as a matter of law, the evidence failed to show a viola tion of the proprietors duty to customers and other invitees to use care to keep the premises in a reasonably safe condition. Accordingly we hold the proprietor is not liable for injuries to plaintiff who fell over the display appliance which was being used in a usual manner in conducting the business. It was not shown the proprietor failed to keep the premises in a reasonably safe condition to prevent injuries to customers. The plaintiff further argues that the trial court erroneously failed to consider her allegations that the defendant was negligent in failing to protect the customers by building uprights or guardrails around the display platforms. A store proprietor is not required to put up warning signs or install guardrails to protect customers against injury from falling over a display appliance unless the use and location of a particular display creates a latent danger which would otherwise expose customers to an unreasonable risk of injury. (See Marietta v. Springer, supra.) The location and nature of the display platform in this case did not create a latent danger. Therefore, there was no duty to provide guardrails. We have conscientiously examined each point specified by plaintiff on appeal. Under the law governing a proprietor’s duty to customers and under the facts of this case we must hold as a matter of law the evidence was insufficient to show defendant failed to use care to keep the premises in a reasonably safe condition. Accordingly the trial court did not err in setting aside the verdict and entering a judgment for defendant. Judgment is affirmed.	[ -48, -2, -76, -116, -99, -32, 34, -40, 65, -63, 38, 83, -83, -61, 20, 111, 115, -67, 117, 99, 86, -77, 7, 115, -10, -77, -109, -43, -3, -38, -27, -2, 76, 32, 66, -75, 102, -61, 69, 84, -114, -114, 40, 100, -64, 40, 48, 50, 118, 67, 53, 94, -13, 43, 27, -61, -20, 44, -5, -67, 112, -72, -22, 13, 127, 17, -77, 36, -98, 67, 88, 38, -128, 57, 0, -24, 115, -74, 6, -44, 105, -101, 8, 102, 98, 33, 29, 111, 56, -103, 6, 95, -115, -25, -112, 88, -119, 13, -74, -99, 117, 18, 6, -2, -25, -108, 31, 108, 11, -102, -44, -69, -117, 117, 50, -118, -21, -125, -80, 97, -51, -8, 94, 71, 123, 123, -50, -74 ]
The opinion of the court was delivered by Valentine, J.: On February 12,1878, and prior thereto, W. L. Taylor, who then resided in the town of Cherokee, in Crawford county, Kansas, was the equitable owner of forty acres of land near that town, and was the absolute owner of one-half of a town lot, with a little house thereon, situated in the town. The legal title to the land was in the Missouri River, Fort Scott & Gulf railroad company, but Taylor had a contract for the purchase thereof. The legal title to the half-lot was in Taylor. Taylor at that time was in feeble health, and, expecting soon to die, assigned the said contract for the purchase of said forty acres of land to his daughter Lydia, and conveyed by deed the said half-lot in Cherokee to his daughter Josephine. The two daughters did not reside in Kansas, and in fact have never resided in Kansas, and have never even been in Kansas. Hence when Taylor executed said assignment and said deed, he handed the same to E. A. Perry, who was then present, with the request that Perry should deliver the same to his daughters, which Perry agreed to do and afterward did. Taylor also asked Perry to look after all his property, and see that his daughters got the same after his death. On March 14, 1878, Taylor died intestate, and Perry was appointed his administrator. Afterward Perry entered into correspondence with the daughters —Lydia then residing at Chicago, Illinois, and Josephine at Stewartsville, Indiana. Perry became the agent of the two daughters for the management and sale of their property. Afterward Perry sold the property, and out of such sales have originated two law suits against him — one instituted by Lydia, who was then married, and whose name was then Lydia Smith; and the other by Josephine, who was also married, and whose name was Josephine Wade. Both of these suits were commenced on May 26, 1882, before a justice of the peace in Crawford county, Kansas, where Perry resides, and after judgment they were both appealed to the district court, in which court a trial was had in each case before the court and a jury, which trial resulted in a judgment in each case in favor of the plaintiff and against the defendant, Perry; and Perry, as plaintiff in error, now brings each case to this court for review. We shall now proceed to consider the case of E. A. Perry, plaintiff in error, v. Lydia Smith, defendant in error. The case, as it was originally brought by Mrs. Smith, was an action for money had and received; and while the defendant, Perry, claimed that he fully accounted for and paid over to Mrs. Smith all the money which he ever received belonging to her, yet we think his principal defense, and the one which he principally relied on, was and is the statute of limitations ; and in order that the grounds for this defense may be fully understood, we shall state some additional facts: The defendant Perry effected the sale of the said forty acres of land on March 5,1879. He claims that he sold the same for $50, and for only $50. There was some evidence introduced, however, showing that the defendant admitted that he had sold the property for $100; and there was also some evidence introduced tending to show that he received two lots in the town of Cherokee, in part payment on such sale. These lots were conveyed to the defendant on October Vo, 1879. There was also some evidence introduced tending to show that these lots were taken by the defendant at the price of $32; and there was still other evidence introduced, tending to show that they were taken at the price of $100, and that they were worth that amount; and that afterward, and on October 31, 1881, they were sold and conveyed by'the defendant to the Kansas City, Fort Scott & Gulf railroad company for that amount. The said $50, admitted to have been received by the defendant as purchase-money, was received by him about March 5, 1880, and was transmitted by him to and received by the plaintiff about that time. This was one year after the sale was made. It does not appear that anything was ever received by the defendant on the sale of the plaintiff’s property, prior to October 10,1879, when the deed for said lots was received by the defendant; and it does not appear that any portion of the money received by the defendant in consideration of the sale of the plaintiff’s property was received earlier than about March 5, 1880, when said $50 was received. It does not appear that Mrs. Smith had the least ground to suspect, or that she did suspect, that Perry had done anything wrong with regard to her business, or her money, or her property, until sometime in March, 1880; and even then she had only very slight grounds for any suspicion; and she did not have anything more than a very vague suspicion until about the time when she commenced this action. The defendant even yet denies the facts upon which the plaintiff bases her suspicions or her cause of action, claiming that they are not true; and she made no demand of the defendant for anything additional over and above the said $50 which she had already received, until about the time when she commenced this action. This action was commenced, as before stated, on May 26, 1882. Under these facts we do not think that any statute of limitations has barred the plaintiff’s action. It was not-three years from the time when the defendant received the conveyance for said two lots to himself until the plaintiff commenced this action. It was not three years from the time when he received the plaintiff’s money on said land until she commenced this action; and it was not even' one year after the plaintiff had knowledge of the defendant’s wrongs until she commenced this action; and she commenced this action immediately after making the demand on the defendant for settlement and payment. It must also be remembered that the defendant received the plaintiff’s money and property as her agent; and generally the statute of limitations does not commence to run in favor of an agent and against his principal until the principal has knowledge of some wrong committed by the agent inconsistent with the principal’s rights. (Green v. Williams, 21 Kas. 64, 71, 72, and cases there cited; Auld v. Butcher, 22 id. 400, 404, and cases there cited; Kane v. Cook, 8 Cal. 449; Angell on Limitations, § 179, et seq.; 7 Wait’s Actions and Defenses, 238.) We hardly think it is necessary to discuss any of the other questions suggested by counsel in this case. Many of the alleged errors were really not errors; some of them which were possibly errors were not material, and others were not properly saved. Taking the whole case together, we think no material error was committed, and substantial justice was done. The judgment as finally rendered by the court below was in favor of the plaintiff and against the defendant, for the recovery of $50 and costs, and this judgment will be affirmed. All the Justices concurring.	[ -16, 110, -3, -99, 24, 108, 0, -69, 123, -77, -75, 83, 9, -48, 0, 123, 74, 61, 80, 121, -26, -77, 19, -96, -110, -77, -7, -51, -79, 72, -10, -41, 77, 48, 74, -99, -26, -54, -59, -36, -114, -124, 9, -24, -45, -128, 60, 105, 118, 14, 117, -86, -13, 43, 28, -61, -20, 46, -23, 42, 16, -72, -6, -42, 62, 20, 1, 36, -104, 7, -56, 10, -112, 53, 0, -84, 115, 54, -122, 117, 13, -119, 13, 38, 103, 33, -107, -17, 104, -104, 15, -6, -99, 38, 20, 72, 34, 72, -68, -103, 117, 20, 7, -4, -26, 4, 93, -72, -123, -117, -74, 19, 15, 42, -102, 19, -13, 39, -95, 81, -49, -94, 76, 69, 60, -109, -113, -72 ]
The opinion of the court was delivered by Horton, C. J.: It appears in this case that on February 13, 1884, John Stoneberger filed with A. Stevens, a justice of the peace of Hodgeman county, a complaint against D.‘ M. Jessup, alleging that the latter .had -committed an assault and battery upon him. Jessup was arrested, and brought before the justice to answer the complaint. He demanded an immediate trial, which the justice refused, and granted a continuance until February 19 following. On February 19, 1884, the defendant obtained a change of venue, and the cause was sent to J. D. Mackay, another justice of the peace of the county, for trial. When the case was called before Mackay, a motion was made by the defendant, Jessup, to discharge him upon the ground that the complaint did not charge any offense. This'motion was sustained, and thereupon the defendant was discharged. The defendant’s attorney then asked that the costs be taxed against the complainant, whereupon the latter made a verbal statement, and the defendant, Jessup, also made a verbal statement. Neither of the statements of the parties was under oath. Thereupon the justice made a finding that the complaint was without probable cause, and rendered judgment against the complainant for all the costs, and ordered him committed to the jail of Ford county until the costs were paid. The complaint was sufficient for the trial of the defendant for an assault and battery. The statement of the defendant in court showed that he was guilty of the charge made against him. The judgment of the justice against the complainant for costs and committing him to jail was without authority of law, and void. There is no statute authorizing a justice to adjudge costs against a complainant in a criminal proceeding before him where the complaint is disposed of by a motion to discharge the defendant on the ground that no offense is charged therein. (Comp. Laws of 1879, ch. 83, § 19; The State v. Meinhart, 9 Kas. 98; The State v. Campbell, 19 id. 481; The State v. Dean, 24 id. 53; Bonney v. Van Buren Co., 2 G. Greene, 230.) The petitioner will be discharged. All the Justices concurring.	[ -16, -24, -79, -99, 105, -32, 34, -100, 91, -95, -12, 115, -23, -106, 5, 123, 114, 93, 85, 105, -58, -73, 103, 99, -102, -77, 81, -57, -78, -54, -28, -42, 72, 48, 10, 85, 103, -64, -57, 28, -122, -127, 41, -48, -13, 8, 32, 57, 18, 11, 113, 15, -9, 42, 24, -61, 9, 44, -33, -83, 80, -15, -98, 29, 79, 6, -77, 34, -104, -125, 72, 60, -103, 49, 10, -8, 115, -94, -126, 116, 77, -71, 12, -10, 98, 35, 61, -17, 104, -103, 14, -66, -99, -89, -120, 89, 75, 13, -74, -103, 117, 80, -113, -12, -31, 20, 16, 108, 34, -53, -108, -79, -113, 44, -126, 119, -61, -89, 52, 81, -124, -10, 125, 71, 112, -101, -105, -99 ]
The opinion of the court was delivered by Valentine, J.: This is an action in the nature of quo warranto, brought originally in this court by A. C. Campbell against W. H. Braden, for the purpose of having the question determined which of the two is entitled to the office of sheriff of Crawford county, Kansas. It appears from the pleadings, (and the case is submitted to us solely upon the pleadings,) that on November 6, 1883, that being the day of the general election, both Campbell and Braden were voted for for said office; both were residents of Crawford county, and both eligible to the office. Campbell received 2,012 votes, of which 1,901 were cast in the county outside of the city of Girard, and 111 were cast in the city of Girard. Braden received 2,092 votes, of which 1,790 were cast outside of the city of Girard, and 302 were cast in the city of Girard. On the Friday next after the election, the board of county commissioners met and canvassed the election returns, and declared Braden to be elected to said office; and afterward Braden qualified by taking-the oath of office and giving bond; and he took possession of the office on January 14, 1884, and is still in the possession thereof. If the votes cast in the city of Girard are to be counted, then Braden was duly elected to the office; but if such votes are not to be counted, then Campbell was elected. The sole question then to be determined is, whether the votes cast in the city of Girard should be counted, or not. The city of Girard is a .city of the second class, and has been such, in pursuance of the governor’s proclamation, since August 30, 1883; but as to when its organization as such city was fully completed, the pleadings are silent. The plaintiff claims that all the votes cast in the city of Girard at that election were illegal, for the reason that none of the persons who voted in the city of Girard at that election were registered as voters, as required by law, and none of them had sought or made the attempt to be so registered. Just why the voters of the city of Girard were not registered prior to that election, we are not informed; but probably it was because of a failure of the city to organize as a city of the second class and procure poll books within proper time. Prior to August 30,1883, the time when the city of Girard became a city of the second class, it was not necessary under the law that the voters of such city should be registered in order to be entitled to vote, and it became necessary for them to be so registered only after that time. And probably the voters failed to register simply because the city, did not organize as a city of the second class for some time after it became such by virtue of the governor’s proclamation, and because when it did organize as a city of the second class the mayor and council did not procure the necessary poll books for registration. The statute seems to require that such poll books shall be procured on the first Monday in January of each year, and not afterward. (See § 2 of the Registration Act.) And as the first Monday of January, 1883, had passed a long time before the city of Girard became a city of the second class, it is possible that the mayor and council did not consider that they had any authority to procure such poll books until the first Monday of January, 1884. And it is possible also that they did not in fact procure poll books until that time; and if they did not, this fact should not disfranchise the voters of the city of Girard. Under such circumstances, they should be allowed to vote without being registered. Also other reasons than those above suggested may have prevented the registration; and as the pleadings do not show why the voters were not registered, we are at liberty to suppose that it was for any good reason which may reasonably be supposed. Presumptively, the election was valid. Presumptively, the canvass of the board of county commissioners was regular and legal and valid. Presumptively, the certificate of election issued to Braden was regular and valid; and as the defendant, Braden, is now in possession of the office under a regular certificate of election, presumptively he is entitled to the office; and if he is to be ousted therefrom at the instance of the plaintiff, Campbell, it devolves upon Campbell to show affirmatively that Braden is not entitled to the office. If for any reason the voters of the city of Girard might have had a right to cast their votes and have them counted, on November 6,1883, without being registered, we must presume, under the facts as they are now presented to us, that such reasons existed. We shall therefore presume that as the city of Girard became a city of the second class only a short time prior to the election of November 6, 1883, it did not become fully organized as such city of the second class, and did not procure poll books for registration within time for the voters of such city to be registered prior to such election; and, if not, then we think the voters had a right to cast their votes at such election and have them counted, notwithstanding the fact that they were not registered.' Taking this view of the case, we must hold that the de fendant, Braden, is entitled to the office of sheriff of Craw' ford county. Judgment will therefore be rendered in his favor. All the Justices concurring.	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The opinion of the court was delivered by Valentine, J.: This is a companion case with that of Perry v. Smith, just decided. The principal question involved in this case, as was in that, is whether the plaintiff’s cause of action is barred by the statute of limitations, or not; and the questions involved in this case, both with regard to the law and the facts, are equally as difficult as were those in that case. As stated in that case, sometime in April, 1878, Mrs. Josephine Wade, then Josephine Taylor, by a deed of conveyance from her father became the owner of a half of a certain town lot, with a little house thereon, situated in the town of Cherokee, in Crawford county, Kansas; and by reason of a sale of such house by E. A. Perry, and a failure on his part to account therefor to Miss Taylor, now Mrs. Wade, a law suit was instituted by her against him for the resulting damages. That law suit is the present action. This action is for the alleged wrongful and fraudulent conversion of said house, by Perry, together with the wrongful and fraudulent concealment of all the facts by him from her, and misleading her with reference thereto, to her damage in the sum of $50. Judgment was rendered in the court below in favor of Mrs. Wade and against Perry for the sum of $35 and costs. Perry, as plaintiff in error, now seeks to reverse such judgment by this proceeding in error. The theory upon which Mrs. Wade founds her right of action in this case is as follows: She claims that in 1878, the defendant, Perry, was her agent for the management and control of all her property in Kansas, which included said lot, with the house thereon; that about the month of November, 1878, he sold the house and allowed it to be removed from the premises; that the house was of the value of about $50; that Perry never accounted to her for the house or the proceeds thereof, and never paid her anything therefor, but at all times concealed from her the existence of- the house and the sale thereof, and by his representations led her to believe that no house had ever existed on the lot, bnt that the lot was vacant and unoccupied; that she had no knowledge of the existence of the house or of the sale thereof until about the time when she commenced this action, which was on May 26, 1882; and that just prior to the commencement of this action she demanded a settlement and a payment for the house, and that Perry refused to do either. The defendant, Perry, defended the case upon various theories, the principal of which are as follows: (1) He claims that he was never the agent of the plaintiff; (2) that the house at all times was personal property, and therefore did not become the property of the plaintiff by virtue of the said deed of conveyance from her father, and therefore did not belong to her; (3) that prior to the sale of the house — which Perry claims was not until the spring, or summer, or fall of 1879 — and while the house was still standing on the lot, and on January 24, 1879, the plaintiff sold and conveyed the lot to one Edwin Berry, and that when the house was sold by Perry — which as he claims was in the spring, or summer, or fall of 1879 — it was sold as the property of Berry, and not as the property of the plaintiff; the defendant admits that when the house was sold, he sold it; (4) and the defendant further claims that upon every theory of the case, any supposed cause of action which the plaintiff might claim to have against him, is barred by the statute of limitations. The action, as heretofore stated, was commenced on May 26, 1882. The principal disputed points in the case are as follows: First, Was the defendant the agent of the plaintiff for the management and control of her property ? Second, Was the house sold prior to the execution of the deed of conveyance by the plaintiff to Edwin Berry on January 24,1879, or not? Evidently, from the verdict rendered in the case, the jury found that the defendant was such agent, and that the house was sold prior to the execution of said deed of conveyance to Berry. With reference to the question whether the defendant was such agent, or not, the evidence is weak and to some extent conflicting. It appears that shortly after the death of the plaintiff’s father, the plaintiff and the defendant entered into a correspondence with reference to her property in Kansas, she at the time residing at Stewartsville, Indiana, and he at Cherokee, Kansas; and from that time on he attended to all her business with respect to her property in Kansas, so far as any attention was given to it, until after it was all sold; and when he sold the house, he told the purchaser (so the purchaser testified) that he was selling it as the agent of Taylor, and the plaintiff’s name at that time was Josephine Taylor. There is still some other evidence tending to show that defendant was acting as the agent of the plaintiff at the time the house was sold, but we do not think that it is necessary to set it forth in this opinion. Upon the question as to whether the house was sold before or after the execution of said deed from the plaintiff to Berry, the evidence was conflicting; but there was ample evidence to sustain the verdict of the jury. Upon the entire case, we think we must assume that the facts are such as the plaintiff claims them to be; and upon such facts, is the plaintiff's cause of action barred by any statute of limitations? We think not. We think that this case comes under that provision of subdivision 3, §18 of the civil code which provides with regard to “ an action for relief on the ground of fraud — the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud.” And as some authority for this, see the last sentence in the opinion in the case of Voss v. Bachop, 5 Kas. 59, 69. The “section 22 of the code,” there referred to, and which section was then in force, is § 22 of the civil code of Kansas, enacted in 1859; and it is exactly identical with subdivision 3 of §18 of the present civil code. See also the authorities cited in the case of Perry v. Smith, just decided. We think the case of Howk v. Minnick, 19 Ohio St. 462, referred to by counsel for defendant in error, has no application to this case. In that case it does not appear that any relation of trust or confidence ever existed between the plaintiff and the defendant, while in this case such a relation did exist. That case was purely one of tort, and had not the slighest or most remote connection with any contract or with any relation founded upon contract; while in this case, though founded upon tortious acts, the acts themselves were in violation of a contract of agency, and in violation of a relation existing .between a principal and an-agent. Of course the mere concealment of a cause of action, or the concealment that a cause of action had ever accrued or ever had any existence, does not of itself bring the case within the above-quoted provisions of subdivision „3, § 18, of the civil code; nor does it prevent the statute of limitations from running. There must generally be something more than mere concealment. But in this case there was not only concealment, but, according to the verdict of the jury, there was also fraud and a breach of trust and confidence before, at the time, and after the sale of the house and the conversion of the. proceeds. We think substantial justice was done in this case, and no material error was committed. The judgment of the court below will be affirmed. All the Justices concurring.	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ORDER Upon consideration of this appeal, the court is of the opinion the appellant, Earl C. Moore, has legal capacity to maintain the action. Upon further consideration, a majority of the court is of the opinion that proposition No. 2 (Amendments Article) was properly submitted pursuant to Art. 14, Sec. 1, of the Constitution, and was constitutionally adopted. Upon further consideration, a majority of the court is of the opinion that proposition No. 3 (Executive Article and Militia Article) was improperly submitted in violation of Art. 14, Sec. 1, of the Constitution, and is void. The court’s conclusion with respect to the invalidity of proposition No. 3 does not affect the validity of proposition No. 2. A formal opinion will be filed when the same is prepared. By Order of the Court Dated at Topeka, Kansas, this 11th day of March, 1971.	[ 116, 110, -3, -100, 10, -31, 25, 23, 112, -79, -27, 83, -87, -37, -108, 121, 91, 15, 117, 123, -42, -73, 7, -23, -110, -77, -5, -43, -77, 107, -26, -10, 12, -95, 90, -107, 70, -64, 65, 92, -82, -125, -101, 81, 81, 74, 52, 98, 16, 75, -47, 31, -29, 40, 24, -61, -24, 44, -37, 45, -63, -72, -114, -107, -19, 6, 35, 6, -98, -123, -40, 47, 24, 49, 24, -8, 83, -90, -98, -76, 109, -119, 8, 102, 107, 1, -23, -18, -8, -120, 63, 90, -99, -28, 22, 88, -29, 33, -74, -65, 53, -108, 11, 126, -29, 5, 29, 44, 12, -118, -80, -77, 79, 56, -118, 1, -21, -127, -112, 97, -51, -90, 93, 99, 49, -45, -106, -44 ]
The opinion of the court was delivered by Fontron, J.: These three lawsuits, which have been consolidated for purposes of appeal, arose out of a collision in Wyandotte County, between cars driven by Franklin L. Gilley and William L. Farmer, Jr- The details of the accident are unimportant so far as the questions now before us are concerned. It is sufficient to say that Mrs. Gilley was killed in the accident and Mr. Gilley, his minor son, Donnie Ray, and another passenger in the Gilley car, Roy Roberts, were all injured. Three lawsuits were filed by Mr. Gilley to recover damages: (1) For Donnie’s injuries, (2) for his own injuries and for damage to his car and (3) for the death of Mrs. Gilley. These actions were tried and resulted in judgments against Farmer totaling $45,956.13. Farmer did not appeal from the judgments. For convenience we shall henceforth refer to the three cases as but a single case, to Gilley either by name or as plaintiff, and to Farmer by his own name or as the defendant. Farmer was insured by the National Indemnity Company, (hereafter referred to as National, or the insurer or garnishee) under an automobile liability policy with limits of $5,000/$10,000/$5,000. These limits imply, as we understand the terms, that insurance coverage was restricted to $5,000 for personal injury to any one person, to $10,000 for injuries sustained by two or more persons in a single accident, and to $5,000 property damage. Since the judgments were entered against Farmer, the insurer paid the car damage in full, amounting to $2300, and has also paid $9,500 on the personal injury judgments, a five hundred dollar out-of-court settlement having been effected with Roy Roberts, the other passenger in the Gilley car. After payment of the foregoing amounts, the balance due on the plaintiffs judgment — amounting to $33,656.13 — remained unpaid. Garnishment proceedings were therefore initiated against the insurer. The garnishee, National, responded to the garnishment order by filing an answer conceding an indebtedness of only $75, which was admittedly due for damage to clothing that National had inadvertently overlooked and which it offered to pay on proper court order. Gilley filed a reply, alleging that National had been guilty of negligence and bad faith in handling his claim in several particulars, and in failing to settle the same within the limits of its policy with Farmer, and that National was therefore liable for the amount of the excess judgment. Gilley demanded judgment for the excess, for its attorneys’ fees and for punitive damages. Farmer also filed a reply with similar allegations of negligence and bad faith and demanded that National be ordered to pay the balance due and owing on the judgment to Gilley. National thereupon moved to strike both replies. The trial court, treating the motion to strike as a motion for summary judgment, sustained the same and entered judgment in favor of the garnishee as a matter of law. In sustaining the motions, the court found that (1) a judgment creditor has no right to proceed by garnishment against his judgment debtor’s liability insurer for a judgment exceeding the policy limits on the grounds of negligence, bad faith, and failure to settle within policy limits; (2) such claim, whether founded in tort or breach of contract, is unliquidated and not a debt subject to garnishment under § 60-724 K. S. A.; (3) once issues are joined in a garnishment action, a motion for summary judgment is not an unauthorized pleading. Mr. Gilley has appealed from the trial court’s ruling, and divides his argument into two main parts. Mr. Farmer has filed no appeal but his counsel’s name appears on appellant’s brief. Plaintiff first contends the trial court erred in rendering summary judgment. The grounds on which this argument rests are (1) a motion to dismiss is an unauthorized pleading not recognized in garnishment proceedings and (2) pretrial discovery had not been completed. K.S.A. (now K.S.A. 1970 Supp.) 60-718 provides that the garnishee shall file an answer to the garnishment order stating the facts in relation thereto, and that either the plaintiff or the defendant, or both, may file a reply to the answer. The statute further provides that if a reply is filed the court shall try the issues joined. This statute does not mention a motion to strike the reply to the garnishee’s answer, nor is reference made to such a motion elsewhere in the garnishment statutes. Accordingly, the plaintiff reasons that the trial court lacked authority to act on National’s motion to strike the replies and to enter summary judgment in the garnishee’s favor. To support this position Mr. Gilley relies primarily on Domann v. Pence, 185 Kan. 702, 347 P. 2d 373. This case was also an action in which the plaintiff had secured a judgment for damages arising from an auto accident for an amount exceeding the defendant’s policy limits. When the excess remained unpaid, the plaintiff garnished defendant’s insurance carrier, which answered, in turn, that it had paid the amount of its policy, and was not indebted to the defendant. The plaintiff excepted to the garnishee’s answer, alleging bad faith and negligence on the part of the insurer in its investigation, preparation, and trial of the damage action. The insurer then filed a demurrer to the exceptions, which was overruled by the trial court. On appeal, this court held that a garnishment proceeding was a special and extraordinary remedy whose procedures were governed by statute (then, G. S. 1949, 60-940 to 60-965); that those procedures were exclusive and did not include a demurrer; hence we said the demurrer was properly overruled. The Domann case was decided prior to the enactment of the present Code of Civil Procedure. The underlying philosophy of the Code is expressed in K. S. A. 60-102: “The provisions of this act shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding.” As we have said, the trial court treated National’s motion to dismiss as a motion for summary judgment under K. S. A. 60-256 and such, we believe, was proper. The motion disclosed on its face that it was filed pursuant to 60-256 on the twin grounds that no genuine issue of material fact existed and that the garnishee was entitled to judgment as a matter of law. These are the circumstances under which the Code envisions the use of summary proceedings. (Hartman v. Stumbo, 195 Kan. 634, 638, 408 P. 2d 693; Board of Satanta v. Grant County Planning Board, 195 Kan. 640, 648, 408 P. 2d 655.) The fact that National’s motion may have been mislabeled as a motion to strike the reply, rather than as one for summary judgment, is of small consequence. The substance of a motion, rather than the title, will generally determine its character. The court was warranted in looking beyond the form to the substance of the garnishee’s motion, and in treating it accordingly. Did the trial court have authority to rule on the garnishee’s motion and to enter summary judgment pursuant thereto? We believe that it did. Judge Gard, in his. excellent work, Kansas Code of Civil Procedure Annotated, speaks of the motion for summary judgment as “a most utilitarian device, designed to complete the overall scheme for making pretrial procedures effective in bringing about, if possible, an expeditious disposition of litigation without needless waste of time in trial formality.” (p. 258.) Thus it is, that summary judgment procedures implement the policy set forth in K. S. A. 60-102 and no reason is suggested for prohibiting their use in garnishment proceedings, in which proceedings the court is to determine the issues either by admissions in the answer or reply, or by default, or by its own findings on controverted issues. (K. S. A. 60-721.) The argument that pretrial discovery was not completed presents no great problem, even though a motion had been filed for the production of documents. We fail to see how those records would have had any bearing on the legal issue determined by the court. The issues had been framed by the pleadings — in this case, the answer, the reply and the motion to strike — and fairly presented the legal question with which the court was faced. We pass to the nub of this lawsuit: Does the procedure of garnishment provide a remedy to a judgment creditor against the insurance earner of his judgment debtor for recovering that portion of a judgment rendered in excess of the carrier s policy limits? We need waste little time in discussing the liability of an insurance carrier to its insured under the circumstances which are alleged in the plaintiff’s reply to the garnishee’s answer. The controlling rule was clearly defined by Justice O’Connor in the recent case of Bollinger v. Nuss, 202 Kan. 326, 449 P. 2d 502. The central thrust of our holding is epitomized in Syllabus 2: “In this jurisdiction a liability insurer may be held liable in excess of its undertaking under the policy if it acts negligently or in bad faith when considering offers to compromise the claim against the insured for an amount within policy limits.” Indeed, National does not challenge the rule just stated; it questions only the availability of garnishment as an appropriate vehicle for determining the question of liability. This court has never been squarely faced with this specific issue; hence, we have never squarely passed on it. However, tacit approval of the practice might be inferred from a few of our judicial utterances in recent years. In Bollinger, the insurer’s liability for payment of an excess judgment obtained against its insured was tested by means of a garnishment proceeding brought against the insurance carrier. However, we did not have to consider whether such procedure was proper, because, as the opinion pointed out, that issue had been abandoned by the insurer. Our opinion in Domann v. Pence, supra, is fraught with some ambiguity. In one breath we said the trial court should have required the parties to proceed with the trial of the garnishment issue as the statute required, while in the next we said that all we were holding was that the demurrer was unauthorized and improper in the garnishment proceeding. Our latest expression is found in In re Estate of Lohse v. Rubow, 207 Kan. 36, 483 P. 2d 1048. That was an action to remove Rubow as administrator of the estate because of his refusal to file suit against the decedent’s insurance carrier to recover an excess judgment rendered against the estate. The trial court refused to remove Rubow and this court, in affirming the judgment, said that if action against the insurer was warranted, “the judgment creditor has available the remedy of garnishment.” (p. 41.) This language was not essential to the opinion but it might be said to evidence some clue as to the court’s thinking on the subject. Our Code does not specifically denote what claims of indebtedness may be subject to garnishment. Instead, the legislative approach to that question was by way of exceptions. K. S. A. 60-724 provides in pertinent part: “No judgment shall be rendered in garnishment by reason of the garnishee: (2) holding moneys on a claim not arising out of contract and not liquidated as to amount . . .” Apparently this language has never been construed, but as we read and understand it, the exception relates to an unliquidated tort claim. National contends primarily that whatever cause of action Farmer may have to recover for the excess judgment standing against him, it is one which is grounded in tort. If this argument is valid, then Farmer’s claim falls within the exception and is not subject to garnishment. A number of cases which have arisen in other jurisdictions support the position taken by National. (Steen v. Aetna Casualty, 157 Colo. 99, 401 P. 2d 254; Pringle v. Robertson,_Or. _, 465 P. 2d 223; Paul v. Kirkendall, 6 Utah 2d 256, 311 P. 2d 376; Stilwell v. Parsons, 51 Del. 342, 145 A. 2d 397.) Other courts have also held that a cause of action against an insurer for negligence in handling a claim against its insured, sounds in tort. (Dillingham v. Tri-State Ins. Co., 214 Tenn. 592, 381 S. W. 2d 914; Murray v. Mossman, 56 Wn. 2d 909, 355 P. 2d 985.) Despite the respectability of the authorities cited, they provide no precedent here. Whatever the rule may be elsewhere, this court has been consistent in holding that where a person contracts to perform work or to render a service, without express warranty, the law will imply an undertaking or contract on his part to do the job in a workmanlike manner and to exercise reasonable care in doing the work. (Crabb v. Swindler, Administratrix, 184 Kan. 501, 337 P. 2d 986.) Where negligence on the part of the contractor results in a breach of the implied warranty, the breach may be tortious in origin, but it also gives rise to a cause of action ex contractu. An action in tort may likewise be available to the contractee and he may proceed against the contractor either in tort or in contract; or he may proceed on both theories. (Nichols v. Nold, 174 Kan. 613, 258 P. 2d 317, 38 A. L. R. 2d 887.) However, his petition need not state whether his action is based upon implied contract or tort. (Ablah v. Eyman, 188 Kan. 65, 680, 365 P. 2d 181, 90 A. L. R. 2d 766.) In Crabb v. Swindler, Administratrix, supra, we applied the foregoing principles to a situation where damage was occasioned hy plumbing which had been defectively installed. In that case it was said: “. . . A breach of an implied warranty to use reasonable and appropriate care and skill, that is, to do a workmanlike job, usually results from the negligence or failure to use due care and skill in performing the particular work . . . Hence, the tortious or negligent acts alleged may be considered as allegations of the breach of the implied warranty. . . .” (p. 505.) The rule has been followed in other similar instances. (See, McCoy v. Wesley Hospital & Nurse Training School, 188 Kan. 325, 362 P. 2d 841; Price, Administrator v. Holmes, 198 Kan. 100, 422 P. 2d 976.) The present case comes within the ambit of this rule. Implicit in the usual liability insurance policy is a covenant on the part of the insurer that, in defending or settling a claim against its insured, it will act in good faith and with reasonable care for his interests. (Communale v. Traders & General Ins. Co., 50 C. 2d 654, 328 2d 198; 68 A. L. R. 2d 883.) The briefs of both parties discuss this question: Is Farmer’s claim against his insurance carrier liquidated or unliquidated? The plaintiff asserts the claim is liquidated in the amount of the excess judgment, while the garnishee takes the position that whatever its liability to the insured may be, the amount thereof is unliquidated. We need not decide the dispute. The exception defined in K. S. A. 60-724(2) refers only to indebtedness arising from tort claims which remain unliquidated — not claims ex contractu. Hence, it is immaterial whether the debt due Farmer is liquidated or whether it is not. In a recent case, Stamps v. Consolidated Underwriters, 205 Kan. 187, 468 P. 2d 84, the remedy of garnishment was employed to determine the liability of the insurance carrier to pay judgments recovered against its insured within the policy limits. While no judgment was involved which exceeded the face of the policy, we see little distinction in principle between a garnishment proceeding to establish an indebtedness within policy limits and one to establish an indebtedness outside these limits arising from a breach of the insurer’s duty to exercise reasonable care and good faith in settling a claim against the insured. In either case the action sounds in contract. Many years ago this court, in B. & M. R. Rld. Co. v. Thompson, 31 Kan. 180, 1 Pac. 622, speaking through Justice Brewer stated: “. . . Garnishee proceedings mean this: the creditor takes the place of the debtor. ‘Only this and nothing more.’ The former takes only that which the latter could enforce. . . .” (p. 196.) This passage was quoted with approval in National Surety Corporation v. Gillette, 194 Kan. 604, 606, 400 P. 2d 681. Under the doctrine expressed in Bollinger, Mr. Farmer could have maintained an action against his insurer for breach of its implied agreement to use reasonable care and to act in good faith in the handling and compromise of claims, and in the consideration of offers to settle within policy limits. In the present garnishment action Mr. Gilley is wearing the shoes of Mr. Farmer. Under the circumstances appearing in this case, we hold that garnishment was a proper procedure for determining the garnishee’s indebtedness. The judgment is reversed with directions to proceed with trial of the issues which have been joined in accordance with the views expressed in this opinion. Feomme, J., not participating.	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The opinion of the court was delivered by Harman, C.: This appeal is by a youthful plaintiff from summary judgment rendered against him in his action for damages resulting from a fall into an excavation made by defendant. Briefly stated, so far as now pertinent, plaintiff’s petition alleged that defendant was engaged as a subcontractor on a construction job for the Grace Lutheran Church located near Pawnee and Hillside streets in the city of Wichita and as such agreed to perform certain excavation work necessary for installation of a sanitary sewer; that on July 18, 1968, defendant caused a large excavation to be made on an easement adjoining the church property and in close proximity to Pawnee street, and upon completion permitted the excavation to remain open but installed two small barricades with two small lights near it; that the barricades were inadequate to warn pedestrians concerning the location and dangerous character of such excavation; on July 18, 1968, about 10:00 p. m. plaintiff was walking along the north side of Pawnee when he fell into the excavation and suffered severe injuries, such occurrence being proximately caused by defendant’s negligence. Defendant filed his answer admitting he was engaged as a subcontractor to perform certain excavation work at the construction site and that plaintiff sustained some injury at the approximate time and place in question but denying defendant was gúilty of any negligence causing the injury. Defendant also alleged contributory negligence. In sustaining defendant’s motion for summaiy judgment the trial court had before it the pleadings, answers to interrogatories' and certain discovery depositions. The latter included those of plaintiff, the five boys who accompanied him at tire time of the incident and the defendant. These depositions disclosed that on July 18, 1968, defendant and his employees, pursuant to specifications furnished by the city of Wichita, had dug a large hole on the south side of Pawnee street, across from the church, for the purpose of building a manhole there and laying a drain across the street northward to the church. Tire hole was about twelve by fourteen feet in size and from fourteen to twenty feet in depth. It was about one foot from the south edge of Pawnee street but had a twenty-four inch wide notch on the north side which came within six or eight inches of the side of the asphalt street. The hole was located on a twenty-five foot parking easement. A pathway on the south side of the hole was used by pedestrians but there was no sidewalk. Defendant testified he and his employees had left tire excavation between 4:30 and 5:00 p. m. on the day in question; before leaving they had placed four barricades around it, one on each side. Two more barricades were placed on the street, one being fifty-feet east of the hole and the other fifty feet west of it. The barricades were of a wooden sawhorse type construction with a yellow flashing light mounted on each. Some of the dirt had been trucked away and some remained about the hole. Plaintiff, who was nearly fourteen years of age at the time he was injured, testified that earlier in the day he and a friend had gone to a hamburger stand at Hillside and Pawnee and had observed construction in progress at the church but did not notice the hole; about 9:00 p. m. he had again gone to the hamburger stand with three other boys; en route they did not go past the church site but took a short cut through some yards; he had no recollection of events occurring that night after they left the hamburger stand. The other five youths, who ranged in age from thirteen to fifteen years, testified substantially that they left the hamburger stand together with plaintiff about 9:30 to 10:00 p. m. walking east down Pawnee street. They noticed the barricades, flashing lights and the hole. The boys’ testimony varied as to the exact number and location of the barricades and as to the precise manner in which plaintiff fell into the hole except that he went in where the notch was made near the edge of the street. The boys had remained about the hole several minutes before plaintiff fell in and talked about taking one of the yellow lights. Plaintiff was facing south when he went into the hole. One boy testified there was no barricade on the north side of the hole. Rocks were tossed into the hole to see how deep it was. Several of the boys had gone by the hole earlier in the day and knew it was there. One boy gave the following testimony (plaintiff, whose full name is James Christopher Albright, is referred to throughout as Chris): “Q- Did you see Chris fall into the hole? “A. I saw him while he was falling, I didn’t see him slip or anything. “Q. Before he fell, did you tell him there was a hole there? “A. He knew there was a hole there. “Q. How did he know that? “A. Well, he was kind of fooling around, he wasn’t — you know, he was — I don’t know, really know what he was doing, but he knew there was one there, he was running around it, or something, while we were walking on ahead. "Q. You mean he was playing around the hole? “A. Yes. “Q. Before he fell? “A. Yes, I am pretty sure he was. "Q. Did you see him? “A. Yes, he was sitting there — there is a little place that went out, you know, about wide enough for a ladder, I don’t know if that’s what it was used for or not, next to the street. And he was setting there, so he knew there was one there, with his feet danglin’ into the hole. “Q. He was sitting on the north— “A. North, yes. “Q. —end of the hole with his feet dangling into the hole? “A. Yes, he was. “Q. I assume he was facing to the south? “A. Yes. “Q. And you turned around, you saw him slip from that position into the hole? “A. Well, he said, ‘Oh’, or something, when he slipped in. I don’t know if he slipped in that position or not. That’s when he was about beside me and he was fooling around by the hole. And we walked on and I heard him say, ‘Oh’, and I saw him slip down into the hole. “Q. Had he gotten to the hole before you did? “A. I don’t know, I doubt it, he might have. “Q. But you saw him sitting there just before the fall? “A. Yes. “Q. How long before the fall? “A. Oh, 30 seconds. “Q. And he was playing around the hole prior to that time? “A. Well, I don’t know if he was playing around it, but he was around the hole, or something, talking around it. “Q. He was what around the hole? “A. Talking around the hole and everything. “Q. What was he saying? “A. I don’t know. “Q. Had he been to the south end of the hole? “A. I don’t know, I doubt it. “Q. Okay. He was playing around the north edge of it then? “A. Uh-huh. “Q. Was he throwing anything into the hole? “A. I don’t remember, I doubt it. “Q. Can you be a little bit more specific of what he was doing about the hole other than sitting and playing around it? “A. No, I can’t. No, I can’t. I just know he was around the hole for, well, a little while, and then he set down as we walked on, and he fell in. I don’t know how he fell in or anything. “Q. Can you tell me exactly what part of the hole, where he was when he fell? “A. He was at the north, middle of the north side. “Q. Okay. And you just saw him as he was slipping in? “A. Yes, I did. “Q. Could you see him [plaintiff] all right? “A. Yes, I could see him all right. “Q. So it wasn’t so dark you couldn’t distinguish him? “A. No, there were street lights and everything, you could see all right. “Q. There was enough light there wasn’t any doubt to you who it was and you could see who it was that was going into the hole? “A. Yes, that’s right. “Q. And the hole, itself, then had some light around it, then, didn’t it? “A. Well, as far as I know. “Q. Well, the hole was black, I would assume? “A. Yes. “Q. You couldn’t see down in the bottom? “A. Yeah, yeah, the barricades. “Q. But you could see the barricades and there was light around the hole. If you could see Chris, you could easily see the barricades, couldn’t you? “A. Yes, I could see the barricades. “Q. Now, that was the thing I was going to ask you. Could you tell from the way he went in whether or not he was sort of jumping in to see how deep it was or whether he was actually— “A. No, he knew it was pretty deep, he wasn’t jumping in. “Q. How do you know he knew it was pretty deep? “A. Well, I don’t know, we just knew it was. Maybe we talked about it. But we knew it was about 20 feet deep, I mean, because we knew the minute he slipped that he had been hurt. His brother ran right to the house. I mean, we didn’t think it was 5 feet deep or anything. “Before Chris Albright fell in, we had stopped by the hole and talked for a couple of minutes or so but I am not sure. We were starting to leave when he fell. We had stopped a little bit east and west of the hole, mainly to the north. I don’t know what we talked about. “Q. But all of you were around that hole for a period of a couple of minutes? “A. Yes. “Q. Chris say anything during that period of time to any of the boys about the hole? “A. No, but I remember him — I don’t know, he was trying to act big or something, I can’t remember what he said, but he was showing off a little bit with what he was saying, not by his actions. “Q. What did he say that made you think he was showing off? “A. I can’t remember. He was just acting big, I remember that. “Q. You remember he was acting big? “A. (Witness nods head in the affirmative) “Q. Okay. Was he acting big in regard to the hole? “A. Oh, not particularly. “Q. Well, he was sitting there and he had his legs— “A. Well, he was standing up then, what I was talking about and then he sat down. “Q. What was he acting big about? “A. I can’t remember. He was smoking and acting real tough, I don’t know.” Another boy testified: “Q. Did you have any difficulty knowing and recognizing that a hole was there? “A. I knew it was there, yes, sir. “Q. When you saw the blinker lights? “A. Yes, sir, I saw it on the way up. “Q. Chris knew it was there? “A. Yes sir, he probably did, the lights were all around and— “Q. How long would you estimate that you stopped and talked in the vicinity of the hole? “A. About five minutes, 5. * * * “Q. I have another question here, David. I believe you answered one question to the effect that Chris knew there was a hole there, didn’t he? “A. Yes, he would have to have been nuts not to realize this, I mean, all the lights and everything. “Q. How do you know that he knew there was a hole there? “A. Well, anyone could have seen it, I mean we were standing about 4 feet from it, the blinker lights and — .” Still another boy gave this testimony: “Q. Okay. What did these barricades look like? “A. They were black and white with a yellow flasher. “Q. You didn’t have any problem seeing them, did you? “A. No. “Q. Were the flasher lights working? “A. Yes. “Q. How many flasher lights were there? Was there a flasher light on each barricade? “A. I don’t remember. I know there was one on the east and the west and one on the little one, on the one on the west side, the little one by the road, but I am not sure about the fourth one. “Q. And you didn’t have any problems then in the hole, did you? “A. No. “Q. You didn’t have any problem seeing the hole, did you? “A. I couldn’t — I could just see the barricade where it was around it, but I didn’t know the hole was there or nothing like that. “Q. All right. You knew there were barricades around there? “A. Yeah, I could see them. “Q. You knew it said caution? “A. Yeah. “Q. You could read that? “A. Yeah. * * * “Q. Did you stop around the hole? “A. You mean before we went there? “Q. Yeah, before— “A. Yeah, we was looking at the caution light, that one, and we were just standing there, you know, talking about that if it was, you know, you know, Chris was talking about, you know, if he had one of them lights, you know, what would happen if he got caught with it, and then we was back out on the road and we started on home— “Q. Chris wanted to know what would happen to him if he took one of those caution lights? “A. Yeah, we was talking— “Q. Was he thinking about taking one? “A. No, we was just talking about it, we weren’t going to take any. “Q. I think we all know you weren’t going to take any. “A. Yeah, yeah. “Q. Did the idea kind of cross your mind? “A. Yeah. * * * “Q. Anyone else talk about taking any caution lights? “A. No, we was just all talking together, I don’t remember what was all said, but we was talking about— “Q. What else did you talk about? “A. That was about all. “Q. Taking the flasher light? “A. Just about the light. “Q. And Chris was the one that wondered what would happen to him if he took one? “A. Yeah. “I don’t remember Chris ever sitting down on the north edge of the hole and dangling his feet over the hole. “Q. Now, are you saying he did or he didn’t or that you don’t know? “A. I don’t know. “Q. He could have, couldn’t he? “A. Uh-huh. “Q. You were out in the street? “A. I was on the street. “Q. All right, now was Chris on the street, too? “A. He was right in front of me on the street. “Q. All right, how far were you behind him? “A. About a foot and a half, two feet. “Q. Then what happened, Ernest? “A. Then we just went on until — then he slipped down the incline, fell in the hole. “Q. Did you see him slip? “A. No, I just saw him disappear. He just— “Q. Tell me how he disappeared. “A. Well, we was walking, all of a sudden he went down, and so one of the boys, I don’t remember who, had a flashlite and— “The hole was about a half of block from the intersection of Hillside and Pawnee. “Q. Half block? And I believe you said the flasher lights were working all right? “A. Uh-huh. “Q. And you knew what that meant, didn’t you? “A. Uh-huh, caution. “Q. Chris knew what it meant, didn’t he? “A. Uh-huh. “Q. And one of the reasons you didn’t take that caution light is because you knew if you did it would be dangerous for somebody, isn’t' that right? “A. Yes. “Q. And Chris knew that, didn’t he? “A. Uh-huh. “Q. Now, you knew it was going to be dangerous for somebody, didn’t you? “A. Uh-huh. “Q. And you knew it because there was a dangerous condition there, isn’t that right? “A. Uh-huh.” Plaintiff’s fifteen year old brother, who was one of the group, testified: “Q. (By Mr. Stephenson) What did you talk about while you were walking back to your house? “A. Things boys usually talk about and— “Q. What are those things? “A. Girls. “Q. What else? “A. And, oh, like when we got to the excavation somebody said ‘What would happend if we swiped this light’, the flashing light. “Q. Who said that? “A. I think it was either me or somebody else who said it, I am not sure, and we talked about it for a minute or two, and we were going to go on and then all of a sudden Chris stumbled over there, I don’t know what it was, he stumbled and he fell and all I saw after that was his hand. “Q. Did you hesitate or stop at the excavation site? “A. About a minute or— * * * “Q. (By Mr. Stephenson) What did you do while you were stopped? “A. We were deciding whether or not to swipe the flashing light. “Q. What did you decide? “A. No. “Q. Which flashing light were you talking about? “A. There was two of them, just one of them. “Q. Did it matter, you were just talking about a flashing light? “A. A flashing light, yes. “Q. Did you observe barricades around the site? * * * “A. As far as I could see, it wasn’t very well guarded with barricades. “Q. (By Mr. Stephenson) Did you observe any barricades at the site? * * * “A. I guess you could say I saw one. “Q. So the two flashing fights you noticed were attached to a barricade such as in that picture, is that right? “A. You couldn’t rightly call them a barricade because they weren’t very big. “Q. Let’s call them a support, then. “A. Okay, a support. “Q. That’s what they were attached to that I just showed you? “A. Yes. “Q. And these so-called supports had caution lights on them, did they? “A. You couldn’t really see whether they were or not because the light was flashing off and on and it does not give off that much light and the place was very dark. “Q. Now, were there two of these supports? “A. Yes. “Q. Okay. Now, where were they placed? “A. There was one in the back of the hole and one right there in front. “Q. And each of those had a flasher light on it? “A. Yes. “Q. And they were flashing? “A. Yes. “Q. Now, you knew there was a hole there, didn’t you? * * * “A. I didn’t know exactly what it was because, like I said, it was very dark and you couldn’t see very well. “Q. You knew those flashers and barricades were out there for some purpose, didn’t you? * * * “A. It could be there for almost anything. “Q. (By Mr. Stephenson) You knew they were out there for some purpose? “A. I guess so. “Q. (Mr. Stephenson) Okay. What purpose? “A. Something the city had been working on, like asphalt that hadn’t completely dried or an excavation, or something else like that, it could have been any number of things. “Q. You understood it to be a warning, didn’t you? “A. Yes. “A. I figure I am old enough to know. “Q. (By Mr. Stephenson) And you know they were there to warn you about something? * * * “A. Yeah, any idiot ought to know that. “Q. What made you decide not to swipe a light? “A. It wasn’t right. “Q. Did you discuss the fact that if you took one of the lights you might make it hazardous for somebody else? * * * “A. We didn’t actually say that, but that was probably what was in the back of everybody’s mind. * * * “Q. Did you know that there was construction going on in that area? “A. I didn’t know it until we saw the flashing lights. “Q. What construction did the flashing lights reveal? “A. Didn’t reveal too much, didn’t reveal hardly anything at all. The lights weren’t bright enough. If you will notice, the lights are covered with a dark yellow covering and the light inside is not really bright enough, just enough so you can see it flashing off and on. “Q. You revealed — I mean, it revealed enough light to you that you knew there was construction going on, I think I understood you that way? “A. I am going to repeat myself. Any idiot ought to know what a flashing stands for. “Q. (By Mr. Stephenson) You said you never did learn what it was about. “A. A flashing light means some kind of danger. “Q. Does Chris know that? “A. He ought to. “Chris was standing in the street reasonably close to the barricades and he stumbled over something in the street, like there was a whole bunch of dirt clods, big old hairy dirt clods all around. “Q. So it is your testimony that Chris stumbled on a dirt clod in the street? “A. I don’t know that it was a dirt clod. He stumbled on something. Could have been over his own two feet, I don’t know. “However, I did not see him stumble and he stumbled on over into the pit. “Q. (By Mr. Stephenson) All right. Before he left Sparky’s would he know what a yellow flasher light meant? “A. Before he left, yes, he would. “Q. Would he know that was a warning? “A. Yes, he would. “I was about 50 feet from the excavation when I first noticed the flashing lights, they were not on the highway but were about 6 or 7 inches from the blacktop. “The small barricade with the flashing yellow light on the north side of the hole was in the middle of that side. “Q. How far to the north of this hole would you say that you boys stopped in feet? “A. About a foot, foot and a half, somewhere around in there. See, the light was fairly close to the excavation. We decided whether or not to get it. “A. I saw the light flashing when I was 50 feet away from it. “Q. And the closer you get, the more light that light makes, isn’t that right? * * * “Q. (By Mr. Stephenson) Or did it get dimmer? “A. Didn’t get dimmer, as it approached. “A. It didn’t get dimmer, you could see a little better. “Q. (By Mr. Stephenson) It got brighter and you could see better? “A. Yes, I could see better. “Q. You could see it was attached to the barricade? “A. Yes.” Before considering the merits of the appeal, review of our law relating to summary judgment is in order. K. S. A. 60-256 (c) fixes the standard for determining whether summary judgment should be granted. In pertinent part it provides: “The judgment sought shall be rendered forthwith if 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 a judgment as a matter of law.” In Lawrence v. Deemy, 204 Kan. 299, 461 P. 2d 770, we stated (citations omitted): “Generally before a summary [judgment] may be granted, the record before the court must show conclusively that there remains no genuine issue as to a material fact, and that fhe moving party is entitled to judgment as a matter of law. A mere surmise or belief on the part of the trial court, no matter how reasonable, that a party cannot prevail upon a trial will not warrant a summary judgment if there remains a dispute as to a material fact which is not clearly shown to be sham, frivolous, or so unsubstantial that it would be futile to try the case. The manifest purpose of a summary judgment is to obviate delay where there is no real issue of fact. A court should never attempt to determine the factual issues on a motion for summary judgment, but should search the record for the purpose of determining whether factual issues do exist. If there is a reasonable doubt as to their existence, a motion for summary judgment will not lie. A court, in making its determination, must give to the party against' whom summary judgment is sought the benefit of all inferences that may be drawn from the facts under consideration. “Regardless of how refined or sophisticated we attempt to state the summary judgment rule, we always return to the language of the statute itself (K. S. A. 60-256 [c] — there must remain ‘no genuine issue as to any material fact.’ A natural result of this requirement is that in negligence cases summary judgment is seldom proper. “. . . While the stage of the proceedings does not necessarily determine the propriety of summary judgment being rendered, ordinarily it should not be granted when pretrial discovery remains incomplete.” (pp. 301-302.) In Hastain v. Greenbaum, 205 Kan. 475, 481, 470 P. 2d 741, we quoted approvingly from 3 Barron and Holtzoff, Federal Practice and Procedure, rules edition, § 1234, as follows: “ ‘Normally where the only conflict is as to what legal conclusions should be drawn from the undisputed facts, a summary judgment should be entered, [p. 128.] ... It has been said that an issue is material if the facts alleged are such as to constitute a legal defense or are of such nature as to affect the result of the action, or if the resolution of the issue is so essential that the party against whom it is resolved may not prevail. ... It has been said that a genuine issue is one which can be maintained by substantial evidence. Where the pleadings or proof of either party disclose that no cause of action or defense exists, a summary judgment may be granted. [pp. 131-132.] . . . A popular formula is that summary judgment should be granted on the same land of showing as would permit direction of a verdict were the case to be tried, [p. 133.] ... If there is any question as to the credibility of witnesses or the weight of evidence, a summary judgment should be denied.’ (p. 134.)” (p. 481.) Plaintiff urges the trial court erred in granting summary judgment because genuine issues of material fact remained unresolved. He stresses the disagreement as to the exact number and placement of the barricades at the time of his fall and also that the adequacy and sufficiency of the warning given was in question. He states the paramount issue was whether the protection and warning given by defendant was reasonably safe under the circumstances and that, therefore, the nature and the placing of the barricades around the hole was very material. He emphasizes the testimony of one or two of the boys to the effect there was no barricade on the north side of the hole, and also testimony that all of a sudden he fell into the hole. Certainly there was never any dispute concerning the fact plaintiff fell into the hole. Defendant’s' answer specifically admitted plaintiff was injured at the time and place alleged, and all the evidence on the point verified the fall. In our view the exact or precise manner in which he fell was of little or no consequence. As already indicated, the petition charged negligence in the inadequacy of the barriers to warn pedestrians concerning the location and character of the excavations. The trial court ruled in effect that plaintiff had not shown actionable negligence on the part of defendant. Defendant now defends the judgment upon that ground rather than contributory negligence (without conceding the latter defense is inapplicable), asserting the record is conclusive that defendant discharged his legal duty to plaintiff. Here all the witnesses to plaintiff’s actions, and the conditions existing at the time, testified. Discovery apparently had been completed. Unfortunately for plaintiff, he was unable to supply more information. Giving to his evidence the most favorable construction it reasonably bears, we must agree with defendant’s contentions. The function of a warning is simply to convey knowledge or notice. The particular manner in which defendant warned plaintiff of the excavation is immaterial if in fact effective notice was given. It appears undisputed that such notice was given. The evidence was that lights on the barricades were flashing and the party of boys, including plaintiff, stopped several minutes at the excavation and even discussed talcing one of the warning lights. It was undisputed plaintiff knew of the hole and actually sat down with his feet dangling in it — no testimony given was inconsistent with that fact. Defendant was not an insurer of plaintiff’s safety. As a contractor in the prosecution of work adjacent to a street, his duty was to exercise reasonable care for the protection of those rightfully in proximity to the work (65 C. J. S., Negligence, §§ 63[144], 84; see also, Walton v. Noel Co., 167 Kan. 274, 205 P. 2d 928). Here the breach of duty relied upon was inadequacy of the warning as to the hole but it was established plaintiff had positive knowledge of the hole. Whatever the type of warning given was, it conveyed the message and thereby satisfied the requirement of reasonable care. The rule is that where proper notice or warning of a dangerous condition is given by one bound to give it, he generally is relieved for injury received by another who does not heed it (see 65 C. J. S., Negligence, § 89b). Notice or warning of the dangerous condition was given and under the proof we must hold that defendant was relieved from liability for injury received by plaintiff who obviously did not heed that warning and rendition of summary judgment was proper because no claim for relief existed. The judgment is affirmed. APPROVED BY THE COURT.	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Per Curiam: This is an original proceeding in discipline against the respondent, Richard L. Barrett, of Pratt, Kansas, in which the State Board of Law Examiners has recommended disbarment. Complaint was lodged with the State Board of Law Examiners by eight members of the Pratt County Bar Association. After investigation and hearing the State Board of Law Examiners filed its report, findings and recommendation of disbarment. The instant proceeding was filed and docketed under Rule No. 206 of the Supreme Court (205 Kan. lxii). Respondent, Richard L. Barrett, filed exceptions to the report of the State Board of Law Examiners. The matter was briefed and argued, and it now becomes our duty to examine the record and determine the judgment to be rendered. Our authority and duty in this regard was set forth in the case of In re Phelps, 204 Kan. 16, 459 P. 2d 172, cert. den. 397 U. S. 916, 25 L. Ed. 2d 97, 90 S. Ct. 922; as follows: “Under the statute (K. S.A. 7-111) an attorney may be disbarred or suspended for the grounds enumerated, which include willful violation of his oath or of any duty imposed upon him as an attorney at law. The bases for revocation or suspension of an attorney’s license to practice, however, are not restricted to those of the statute. Serious infractions of the Canons of Professional Ethics adopted by the American Bar Association are also grounds for invoking disciplinary measures against offending lawyers. We have said that this court has inherent authority to discipline members of the bar of this state whenever their conduct substantially fails to conform to the ethical standards prescribed for the legal profession, or whenever their activities become otherwise inimical to the just and orderly administration of law. [Citation omitted.]” (p. 17.) The respondent was admitted to practice law in the year 1950 and has continued to practice at Pratt, Kansas, since that date. He was present and testified at the hearing before the State Board of Law Examiners. Neither by his testimony nor by his exceptions to the report of the board does he dispute the material facts found by the board and set forth in their report. Respondent is doing business under the firm name of Barrett and Barrett, Attorneys. His father with whom he practiced died in 1960. Respondent thereafter has practiced law under the style of Barrett and Barrett, Attorneys. The complaint in this proceeding involves two separate business transactions which respondent undertook for clients. The first arose from a sale of $20,000 worth of real estate. Respondent drew a contract of sale dated October 7, 1968, which provided for the escrow of title documents and for payment of the purchase price. The purchase price was to be remitted promptly by respondent to the sellers when received. Respondent was designated as escrow agent in the contract and as such received two payments on the sale price. The first payment of $4,000 was received on October 17, 1968. This check was either cashed or deposited at the Greensburg State Bank on October 18, 1968, after being endorsed by respondent. On December 30, 1968, respondent received a second check as escrow agent in the amount of $5,157.50. On this same date respondent issued a check to the seller of the real estate covering only the $4,000 payment less sale expenses. Payment was refused on this check because of insufficient funds in the account. Respondent had maintained a checking account in the Peoples Bank of Pratt, Kansas, which was designated as a trust account of Barrett and Barrett, Attorneys. The insufficient fund check was drawn on this account. The $5,157.50 check received by respondent was not deposited for some time. It was held by him for two months until February 27, 1969, at which time it was deposited in this trust account. On March 4, 1969, the Peoples Bank of Pratt refused payment of an unrelated check drawn by respondent on this trust account in the sum of $14,743.50 and payable to a bank in St. Louis, Missouri. The trust account had insufficient funds to cover the check. The check had been given to satisfy an unconnected escrow obligation of the respondent. Two days later the respondent deposited $9,085.78 in the trust account and re-issued the $14,743.50 check to the St. Louis bank. The $9,085.78 deposit was made up of $2,000 in currency, $4,500 which was transferred from the Barrett and Barrett, Attorneys, account in the Greensburg State Bank and a check for $2,585.78 received from another client. When the second check to the St. Louis bank was paid the trust account was reduced to a balance of $726.10. Thereafter respondent issued a check for $5,157.50 payable to the seller named in the escrow agreement. On April 8,1969, in response to a demand by the sellers attorney in Arkansas for payment of the $4,000 item, respondent took $5,000 in currency from his office safe and drove to Arkansas. He paid his obligation under the $4,000 payment in currency and returned to Pratt. Shortly thereafter demand was made upon him for the $5,157.50 payment. No payment was forthcoming and a suit was filed May 16, 1969, to recover this amount and to terminate his duties as escrow agent under the contract. On July 3, 1969, a formal complaint was filed with the Kansas State Board of Law Examiners based upon his handling of the funds arising from the escrow agreement and upon his failure to carry out other duties as executor of an estate in the Probate Court of Pratt County, Kansas. The suit against respondent to recover the $5,157.50 was settled on July 25, 1969, with funds obtained from a real estate loan on his personal real estate. He was relieved of all further duties as escrow agent under the contract. The second matter called to the attention of the board arose from respondent’s handling of the assets of what we will refer to as the Samples estate. He was appointed executor of the Samples will without bond on November 30, 1962. The estate consisted of roughly $71,000 in liquid assets such as cash in banks, savings and loan shares, mutual funds, Kansas Power and Light Company stock and real estate which was sold and payment received in full on or before March 18, 1966. At this time the estate was ready to close. After many letters and calls from the heirs to respondent and after an informal complaint was made to the Kansas Bar Association, a decree of final settlement was obtained in the probate court. On April 12, 1967, respondent was directed to pay over the assets of the estate, file his receipts and receive his final discharge. No settlement with the beneficiaries of the will was forthcoming for more than two years thereafter. On May 20, 1969, a suit was filed' to remove respondent as executor of this estate and require him to turn over the assets of the estate. Respondent appeared in probate court in response to a petition for removal and sought additional time to respond to the petition. At that time, June 2, 1969, he was questioned before the court as to the funds and assets of the Samples estate as follows: “Mr. Hampton: I think you said, Richard, you were going to advise us of the whereabouts of the funds. Can you do that for us? “Mr. Barrett: I have the funds. “Mr. Hampton: You have the funds on deposit somewhere? “Mr. Barrett: We have the funds in our possession. “Mr. Hampton: You mean in your private possession and not deposited with others in any way? “Mr. Barrett: They are in our possession. “Mr. Hampton: Are they earning revenue? “Mr. Barrett: They are not earning revenue at the present time.” After these assurances were made in open court by Mr. Barrett a continuance was granted. He thereafter failed to appear on the date set for hearing and a judgment was rendered removing him as executor on June 27, 1969. The probate court, in removing respondent as executor, found: “. . . [T]hat he has failed, neglected or refused to appear, transfer funds, make payments or otherwise properly account to this Court for the handling and management of said estate; that the Executor has caused unnecessary, unreasonable, and unlawful delay in the administration and settlement of said estate; that the named executor has failed, neglected and refused to obey the orders of this Court; that the Executor has failed to properly handle and manage the assets in the Estate of Sarah Samples, Deceased; that Richard Barrett should be removed by this Court as the Executor of the Estate of Sarah Samples, Deceased; . . .” When respondent appeared before the State Board of Law Examiners he admitted that he was short $15,734.10 in assets belonging to the Samples estate. On July 18, 1969, he borrowed $21,000 on his home and real estate in order to raise the $15,734.10 which was then paid through the probate court. The balance of the loan was used by him to settle the suit over the escrow agreement as previously mentioned. The State Board of Law Examiners found that both charges in the complaint had been proven by unimpeachable evidence and by respondent’s admissions. It found respondent commingled the funds from the Samples estate and from the escrow agreement with his own funds in violation of Canon 11 of the Canons of Professional Ethics adopted by the American Bar Association. Canon 11 then in effect read as follows: “The lawyer should refrain from any action whereby for his personal benefit or gain he abuses or takes advantage of the confidence reposed in him by his client. “Money of the client or collected for the client or other trust property coming into the possession of the lawyer should be reported and accounted for promptly, and should not under any circumstances be commingled with his own or be used by him.” (Professional Ethics, 198 Kan. xviii.) The evidence establishes that respondent kept large amounts of currency in his office safe. At one time he deposited $2,000 in currency in the trust account in the Peoples Bank in order to make up the total amount needed on March 6, 1969, to cover the $14,743.50 check which had been turned down for insufficient funds. On April 8, 1969, he took $5,000 in currency from his office safe to cover his insufficient fund check held in Arkansas. The source and identity of this currency taken from his office safe is not explained in the record. The $4,000 check received by respondent for his clients under the escrow agreement was either cashed or deposited by respondent in an account in the Greensburg State Bank which account was a firm or business account designated only as belonging to Barrett and Barrett, Attorneys. The $15,734.10 corpus of the Samples estate was not kept in identifiable bank accounts. All funds of clients paid to a lawyer or law firm, other than advances for costs and expenses, should be deposited in one or more identifiable bank accounts maintained in the state in which the law office is situated. A lawyer should promptly notify a client of the receipt of his funds, securities, or other property. A lawyer should maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them. In addition it is the duty of the lawyer to promptly pay or deliver to the client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive. (See rules of the Supreme Court, Rule No. 501, DR9-102, 205 Kan. xcii.) Commingling is committed when a client’s money is intermingled with that of his attorney and its separate identity lost so that it may be used for the attorney’s personal or business expenses or subjected to claims of his creditors. The rule against commingling was adopted to provide against the probability in some cases, the possibility in many cases, and the danger in all cases that such commingling will result in the loss of the client’s money. A trustee or attorney handling funds of a client cannot escape responsibility for a trust account by the simple act of not keeping any record or data from which an accounting might be made. (Black v. State Bar, 57 C. 2d 219, 18 Cal. Rptr. 518, 368 P. 2d 118.) Mr. Justice Nelson speaking for the Supreme Court of the United States in Stockton v. Ford, 52 U. S. 232, 13 Law Ed. 676, said: “There are few of the business relations of life involving a higher trust and confidence than that of attorney and client, or, generally speaking, one more honorably or faithfully discharged; few more anxiously guarded by the law, or governed by sterner principles of morality and justice; and it is the duty of this court to administer them in a corresponding spirit, and to be watchful and industrious, to see that confidence thus reposed shall not be used to the detriment or prejudice of the rights of the party bestowing it.” (p. 247.) Respondent states that possibly he erred somewhere along the line, and undoubtedly was negligent in the way this matter was handled but that he had no intention of defrauding anyone of any monies, and that all such monies were paid back. He concludes that his actions do not merit the discipline of disbarment. The actions of respondent, the commingling of funds and the failure to fulfill trust obligations occurred over a period of several years. Insufficient fund checks were issued by him to cover his trust obligations when he either knew or should have known there was no money in the checking account to pay the same. K. S. A. 21-555b provides the issuance of an insufficient fund check shall be prima facie evidence of intent to defraud if payment is not made to the holder within seven days after receiving notice that such fcheck has not been paid by the bank. His restoration of funds lost through commingling with his own came only after suits had been filed against him and after a formal complaint had been filed with the board. In Ex Parte Wall, 107 U. S. 265, 27 Law Ed. 552, 2 S. C. 569, Mr. Justice Field set forth some guidelines by which to measure facts which will justify disbarment as follows: “. . . It is only for that moral delinquency which consists in a want of integrity and trustworthiness, and renders him an unsafe person to manage the legal business of others, that the courts can interfere and summon him before them. He is disbarred in such case for the protection both of the court and of the public.” (p. 307.) The most obvious demonstration of a lawyer’s lack of reliable character and integrity is in being proven guilty of flagrant disregard of the duties of honesty, fidelity, candor and fairness which he owes to clients and to the courts. Unfitness to advise and repre sent clients which justifies disbarment may be determined and resolved by answering the ultimate question of whether it has been shown the lawyer is an unsafe person to manage the legal business of others. (Ex Parte Wall, supra.) It is intimated by respondent that some of the shortcomings set forth in the record may have occurred by reason of the action of his secretaries and other lay persons in the office. A lawyer often delegates tasks to clerks, secretaries and other lay persons in his office. Such delegation is proper if the lawyer maintains a direct relationship with his client, supervises the delegated work, and has complete professional responsibility for the work product. (The American Bar Association, Code of Professional Responsibility, Canon 3, EC 3-6.) The work done by secretaries and other lay persons is done as agents of the lawyer employing them. The lawyer must supervise their work and be responsible for their work product or the lack of it. (Drinker, Legal Ethics p. 160 footnote 6; ABA Op. 85.) One final matter which we deem important to our ultimate decision in this case arises from the respondent’s conduct and statements in the probate court of Pratt county. Respondent made statements that he had the assets and funds of the Samples estate in his possession. These statements were untrue. The attorney’s oath which respondent took on his admission to the bar included the solemn oath he would neither do, nor consent to the doing of any falsehood in court. (In re Phelps, 204 Kan. 16, 27, 459 P. 2d 172, Cert. den. 379 U. S. 916, 25 L. E. 2d 97, 90 S. Ct. 922; Rules of the Supreme Court, Rule No. 210 [h], 205 Kan. lxvi.) The respondent knew or should have known that the statements made by him in open court were false and in violation of his oath as an attorney. The false statements were made for his own personal ends, to gain time. On the basis of the record before us we have concluded that respondent has been guilty of flagrant disregard of the duties of honesty, fidelity, candor and fairness which he owed to clients and to the courts. The record demonstrates that he is an unsafe person to manage the legal business of others and justifies the ultimate discipline of disbarment. Disbarment of Richard L. 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The opinion of the court was delivered by Fontron, J.: This action is one to construe the will of Ellen C. Showers. It was commenced by her son, Kenneth W. Showers, by the filing of a petition in probate court. The cause was transferred to district court pursuant to 59-2402a, where judgment was entered against Kenneth. This appeal followed. In this opinion we shall sometimes refer to Mrs. Showers as Ellen and to Kenneth W. Showers as Kenneth, or plaintiff. The facts are somewhat complicated. We shall attempt to state them as simply as possible. Mrs. Showers had three children: John, who was named as executor of her estate; Mildred, who sides with John in the present controversy; and Kenneth, who initiated these proceedings. Ellen died March 4, 1967. In her will she bequeathed certain items of personal property to each of her three children and devised the oil and mineral interests in her farm property one-fourth each to John, Mildred and Kenneth and the other fourth equally to a church and to a college, which she named. She then directed her executor, John, to sell the remainder of her estate upon such terms and in such manner as he should deem best and without court approval, for not less than three-fourths its appraised value. The proceeds from the sale, which Ellen referred to as the residue of the estate, was to be divided into three equal parts, A, B and C, which she bequeathed as follows: Part A to Mildred, part B to John and the balance remaining in part C, after certain allowances had been made to John and Mildred under a formula which is not too clear, was bequeathed to John in trust for the use and benefit of Kenneth’s children. We are not concerned here with either the formula set out in part C or with the terms and provisions of the trust. Proceeding under the provisions of Ellen’s will, John sold a certain half section of land at public auction, subject to the oil, gas and mineral rights, to Ralph C. Bethell for the sum of twenty-six thousand, four hundred dollars ($26,400), which exceeded the appraised value, as we understand it. A contract of sale was executed wherein it was agreed that $6,600 was to be paid in cash, and held in escrow by a Mr. Legere, the realtor who made the sale, and the balance was to be due on approval of title by Clayton Flood, an attorney from Hays. In due time the Flood law firm, by Steven P. Flood, rendered an opinion expressing some doubt as to whether title was merchantable because of our decision in Blake-Curtis v. Blake, 149 Kan. 512, 89 P. 2d 15, where we discussed the rule against perpetuities. A construction of Ellen’s will was required by Mr. Flood. The opinion was dated May 2, 1969. Three days prior to May 2d, Kenneth filed the present action in probate court to construe his mother’s will, contending it was void as violating the rule against perpetuities. After the petition was filed, considerable activity ensued. Ralph Bethell, who had purchased the land, was made a party defendant, as was Don Legere, the broker who conducted the sale and who held the $6,600 in escrow. Various answers, cross petitions, counterclaims and cross claims were filed by and against John, Mildred, Bethell, Legere and Lowell F. Hahn, guardian ad litem for Kenneth’s minor children. Eventually, and after the pleading phase was over, the court entered summary judgment denying Kenneth’s petition and taxing the costs against him, including a guardian ad litems fee. As has been said, Kenneth has appealed. Ralph Bethell has joined in the appeal, although he does not contend the will is invalid. Bethell also furnished $30,000 supersedeas bond ordered by the trial court. Bethell complains the trial court erred in ordering him to pay the contract balance of $19,800, and in requiring Legere, the real estate broker, to relinquish the $6,600 down payment before there had been a final determination as to merchantable title. He contends that the finding of the district court was not a final determination because its judgment was being appealed. We believe the judgment entered against Bethell was well within the issues framed by the pleadings. Both Bethell and Legere were made additional parties defendant without objection on their part. Bethell had previously taken possession of the farm, and the executor of Ellen’s estate sought to recover the contract price. In a responsive pleading, Mr. Bethell asked that if the will be held invalid the $6,600 he had paid Legere on the contract price be returned to him, and that he be compensated for improvements placed on the farm. The court thus had jurisdiction over the parties and over questions with respect to the sale contract. It was entitled to grant full relief relating to the subject matter being litigated. (Marland Refining Co. v. Cheatum, 125 Kan. 457, 264 Pac. 738.) Mr. BethelTs other displeasure flows from apprehension that under the provisions of K. S. A. 1970 Supp. 16-204 the judgment may bear 8% interest. This is a matter regulated by statute and can hardly be said to affect the courts jurisdiction to enter the judgment. We may also add that no great inequity would seem to result from the payment of interest in view of Bethell’s having been given possession. At the outset, we are met by a motion filed by John Showers, Mildred Thomas and Lowell Hahn to dismiss the appeal. The motion alleges a number of procedural derelictions on the part of the appellants which will neither be detailed nor ruled on in view of our ultimate disposition of this appeal. We are entitled to observe, however, that whenever an attorney undertakes to represent an appellant in appealing to this court he should be diligent in following the appellate rules of procedure last published in 205 Kansas at pp. xxiii, et seq., else he may find an otherwise meritorious appeal thrown out of court. Kenneth, in challenging the lower court’s judgment, complains that the trial court erred in two particulars: (1) In holding that Ellen’s will did not violate the rule against perpetuities and (2) in the assessment of costs against him. We shall examine the complaints separately. Basically, Kenneth’s argument with respect to his first point is that the bequests contained in the sixth article of his mother’s will, denominated parts A, B and C, are conditioned on a contingency which may never occur. He calls attention to the provision directing the executor to sell the residue and remainder of Ellen s estate, after minor bequests have been satisfied, and excepting oil and mineral interests in the farm, at not less than three-fourths the appraised value. Kenneth argues that this is an uncertain contingency which may never occur for two reasons: First, the executor may never find it possible to sell the property for three-fourths its appraised value and second, it may never be possible to sell the property at any price. In support of his position, Kenneth relies on Blake-Curtis v. Blake, supra. In that case the testator directed that his executor take immediate charge and control of his Grant County ranch in its entirety, and manage the same to the best advantage of his heirs; to make new loans if necessary to pay off existing loans; and not to sell the same until he could receive not less than $20 per acre, or the aggregate sum of $40,000, to be used as directed, i. e., to be divided among certain of his children in varying proportions. An action was filed to construe the will, it being contended that the provision forbidding sale of the ranch for less than $20 per acre was void as violating the rule against perpetuities. This claim was grounded on the premise that it might never be possible to sell the ranch for as much as $20 per acre, and evidence was in fact produced that it had not yet been possible to secure a buyer at such a price. The trial court held, in Blake, that the provision limiting the sale to not less than $20 per acre was void as violating the rule against perpetuities, perhaps being somewhat influenced by the agreement of all the litigants that the provision was indeed void. On appeal, this court agreed the restriction was invalid. However, this court went on to hold that the invalid restriction could be excised from, the will’s provisions, thus enabling the executor to carry out the testator’s obvious intention that the ranch be sold and the proceeds paid in the manner directed. In discussing Blake, the defendants call attention to the fact that all parties in that case agreed that the restrictive provision was void because it violated the rule against perpetuities. We presume they would have us infer that the Blake case thus provides no binding precedent for Kenneth’s contention that the limiting provision in Ellen s will is void within the rule. We are not inclined to discuss the basis on which the court, in Blake, made its determination that the limiting provision in the will infringed the rule against perpetuities. The fact remains, such was the decsion. But, as we have already said, the court, after striking down the offending limitation, went on to hold that the void provision might be stricken or disregarded in order that Blake’s testamentary intention might be carried out. This, we believe, is the crucial point in that decision so far as the present case is concerned. After citing a number of anthorities in support of its position, the court said this in Blake: "Running through all these cases is the holding that the thing to be preserved is the testamentary scheme or plan of the testator. If taking out the void clause destroys this plan, then the entire will must fail. If the void clause can be taken out and the testamentary plan followed then that should be done. We are confronted with a situation where the provision fixing the price at which the land may be sold may be disregarded, and still the testamentary plan carried out both as to the execution of the trust for one of the daughters and as to the payment of the proceeds of the sale to the other beneficiaries. To follow the contention of the defendants would destroy the entire plan of the testator and result in intestacy. . . .” (p. 527.) The principle finds strong support in our case law. See In re Estate of Foster, 190 Kan. 498, 376 P. 2d 784, 98 A. L. R. 2d 795, and authorities cited therein. In the subsequent case of In re Estate of Freeman, 195 Kan. 190, 404 P. 2d 222, Foster was cited with approval and we held: “Under the facts as disclosed in the opinion, where some of the provisions of a devise in a will are invalid because they violate the rule against perpetuities and the testamentary scheme can be determined and carried out, at least in part, under the valid provisions, the void provisions will be stricken and the valid provisions given effect. (Syl. ¶ 6.) The testamentary plan in this case appears clear and unambiguous. Except for (1) a few small legacies to her three children and (2) oil and gas interests in her farm, Ellen Showers wanted her property sold and the proceeds distributed in equal shares to John, to Mildred and to John as trustee for Kenneth’s children. Thus, from her property, she sought to make provision for the needs of two of her own children and the children of Kenneth. We believe this testamentary scheme can be implemented despite the limiting provision that sale of the property should not be for less than three-fourths its appraised value. In Blake, the court concluded that the administratrix c. t. a. would have “the power and authority to sell the ranch to the best advantage of all the beneficiaries and to pay out the proceeds in accordance with the directions of the will.” Like authority in this case should be reposed in Ellen’s executor. The contention advanced by plaintiff that it may never be possible to sell the land at any price gives us no pause. We believe it axiomatic that in our society farm land has value. K. S. A. 60-409 provides that judicial notice may be taken of such specific facts and propositions of generalized knowledge as are so universally known that they cannot be the subject of debate. Under this statute the court will judicially recognize that a Kansas farm is a valuable possession. It is quite true that Ellen’s will contains no time Hmitation for selling her property, but this omission will not vitiate the sale provision. In 70 C. J. S., Perpetuities, § 25, p. 607, the rule is expressed: “A power to sell property in order that the proceeds thereof may be used for the payment of debts or legacies is ordinarily not objectionable to the rule against perpetuities, both because it must be exercised within a reasonable time, and because the creditors or legatees have a present interest in the property or its proceeds, of the nature of a charge, and so may compel die donee of the owner to exercise it at once.” In Eary v. Raines, 73 W. Va. 513, 80 S. E. 806, it was held that the power given an executor to sell must be exercised within a reasonable time and thus is not void for remoteness. The Colorado court came to a similar conclusion in Miller v. Weston, 67 Colo. 534, 189 Pac. 610, wherein it was determined that a will which directed the sale of property and the payment of legacies as soon as reasonably practical after the testators demise, did not violate the rule against perpetuities. The same principle has been said by this court to apply with respect to the exercise of a testamentary option to purchase. In the case of In re Estate of Maguire, 204 Kan. 686, 466 P. 2d 358, we held that where no time limit is set by the testator for the exercise of an option contained in his will, the same must be exercised within a reasonable time and, as thus construed, it does not violate the rule against perpetuities. We conclude that the will of Ellen C. Showers does not violate the rule against perpetuities. Two ancillary points remain for consideration. The trial court assessed costs of the action, including a $400 guardian ad literas fee against Kenneth. He complains of this action on two grounds. First he contends the court had no authority to allow a fee to the guardian ad litem. The argument goes like this: (1) In the early cases of Prest v. Black, 63 Kan. 682, 66 Pac. 1017 and Warner v. Warner, 83 Kan. 548, 112 Pac. 97, this court held in substance that guardian ad litem fees were not costs, strictly speaking, and hence were not chargeable against an unsuccessful litigant in the absence of statutory authority; (2) that in 1911 the legislature enacted a law, which eventually evolved into G. S. 1949 60-408, providing for the appointment of a guardian ad litem to represent minors and other incompetent persons, and who should receive such reasonable compensation as the court might order, to be taxed and collected as costs; (3) this statute was repealed in 1963 by enactment of the new Code of Civil Procedure; (4) that present statutes make no provision for allowance of compensation to a guardian ad litem or for taxing his fee as costs. K. S. A. 1970 Supp. 60-217(c) provides in part: “. . . The court shall appoint a guardian ad litem for a minor or incapacitated person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the minor or incapacitated person.” The appellees insist that the allowance of guardian ad litem fees, and their taxation as costs, come within the intendment of “such other order” as the court “deems proper for the protection of the minor or incapacitated person.” We express no view as to whether this is a proper construction of the statute, since the allowance of a fee to the guardian ad litem in the present case appears to be authorized under a section of the Probate Code, K. S. A. 59-1717, which provides: “Every fiduciary shall be allowed his necessary expenses incurred in the execution of his trust, and shall have such compensation for his services and those of his attorneys as shall be just and reasonable. At any time during administration the fiduciary may apply to the court for an allowance upon his compensation and upon attorneys’ fees.” We entertain no doubt that a guardian ad litem is a fiduciary within the meaning of this statute. Neither do we question the authority of the district court, hearing this matter on a transfer from probate court under K. S. A. 59-2402a and 2402b, to utilize the provisions of 59-1717 in making an allowance to the guardian ad litem in the present proceeding. In the recent case of In re Estate of Roberts, 192 Kan. 91, 386 P. 2d 301, we held the district court was authorized to make an allowance for attorney’s fees under K. S. A. 59-1504. Ry analogy, we believe the district court, hearing a matter on appeal from or transferred from probate court, has similar right to allow guardian ad litem fees under K. S. A. 59-1717. In our opinion there is merit in plaintiff’s final contention, i. e., that the costs incurred in district court should be taxed against the estate. K. S. A. 1970 Supp. 59-2214 provides in part that in all probate proceedings relating to a decedent, the court shall tax costs against the estate unless otherwise provided or unless it appears it would be unjust or inequitable to do so. Under the circumstances of this case we believe no injustice would be done by taxing the costs incurred in the trial court against the Showers estate. Although it is true that Kenneth commenced this lawsuit a few days before the title opinion was rendered by Mr. Flood, a construction of the will was required as a prerequisite to Flood’s ap proval of title. Thus a lawsuit was inevitable. Either the present lawsuit — or one identical to it — would be essential to perfect the title. A controversy existed as to a matter of law which was holding up a sale — and a lawsuit was required to resolve it. Under these circumstances it must be conceded that the estate received a benefit from these proceedings which determined the disputed question and removed the doubt which had existed. We deem it fair that costs in the court below be assessed to the estate. In a comparatively recent case, In re Estate of Sowder, 185 Kan. 74, 340 P. 2d 907, this court directed the district court to make a proper allowance to the defeated litigant in a will construction case with which to pay the attorneys’ fees of his counsel, and to assess them against the funds of the estate. The same principle would seem applicable here, and for the same reason, i. e., that an estate is benefitted by having a disputed question of law decided where there is reasonable doubt as to the proper construction of the will. We are unable to say, however, that this appeal confers a similar benefit upon the Showers estate. Judgment was entered in district court upholding the will. That judgment would have become final and binding had this appeal not followed. (Wycoff v. Quick Way Homes, Inc., 201 Kan. 442, 441 P. 2d 886.) This would have been so even though the construction placed on the will was erroneous. (Bindley v. Mitchell, 170 Kan. 653, 228 P. 2d 689.) Since the estate recovered a favorable judgment in the trial court, no benefits would have accrued to it by reason of this appeal. Accordingly, the costs of this appeal will be taxed to appellants. The judgment is affirmed with directions to assess the costs incurred in the court below against the estate of Ellen C. Showers.	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The opinion of the court was delivered by Fatzer, J.: This is an appeal from the district court’s denial of a claim under the Workmen s Compensation Act for death caused by a myocardial infarction. The claimant-appellant, Ella M. Calvert, is the widow of Richard M. Calvert, the deceased workman, and sought an award of workmen’s compensation. The decedent had a history of heart ailment dating back to November, 1962. He was then hospitalized and away from his work until February, 1963. In May, 1963, he was allowed to return to his department with the Darby Corporation, but only in a supervisory capacity. Calvert was cautioned several times by his physician not to engage in physical exertion or physical work. He was hospitalized again for his heart ailment, and was released from the hospital on August 22, 1964. He returned to work for the Darby Corporation with a letter from his physician directed to his employer, to the effect he was not to do any work except in a supervisory capacity. On May 28, 1966, in order to obtain the protection afforded by the Second Injury Fund, the Darby Corporation filed notice with the workmen s compensation director pursuant to K. S. A. 44-567 (since amended), that the decedent was a handicapped person as defined in the Second Injury Act. The notice detailed the decedent’s cardiac handicap, and described the exact condition that caused his death. For two years prior to November, 1967, Calvert had been employed by the Darby Corporation as a “leadman.” His duties were those of a subforeman to supervise the work of crews under the direction of a foreman, but they did not include engaging in physical labor. On the evening of his death, November 27, 1967, the decedent reported to work and was assigned to supervise other men in unloading a carload of steel channeling. Approximately an hour was consumed in switching gondola cars to get them in position for unloading. This required the decedent to signal the one moving the cars to place them in a proper position for unloading. His job involved only standing and signaling to position the cars. After the switching was complete, the decedent and the three workmen whom he was supervising proceeded to unload the cars. The actual unloading of the steel channels was done by an overhead crane. The crane would pick up the steel channels from the gondola car and place them in a nearby pile on the ground. The work required the decedent to raise one arm after the beam came down and then guide it with this one arm to its position on the pile. There was no lifting whatsoever. After the beam was placed in position on the pile, the decedent would bend over and release the hook on his end of the beam. Releasing the hook involved sliding it out from the beam with one hand. The decedent would then stand and wait for some five minutes until another beam was to be placed in position. He followed this work pattern for slightly more than a half hour period and assisted in unloading six beams. The decedent and his fellow workmen then took a coffee break and walked from the place where they had been working to a coffee machine at the office of respondent. The decedent obtained a cup of coffee and secured a package of cigarettes from a cigarette dispenser. For the next ten or fifteen minutes, he proceeded to joke and laugh with his fellow workmen and the trainmen who were there. After he drank the coffee and while smoking a cigarette, he collapsed and apparently died at once. The claimant bases her claim on the proposition that under the 1967 amendment to K. S. A. 44-501, recovery of compensation may be had where death was caused by a workman doing more than his usual work in the regular course of his employment. The addition which amended the statute reads: “. . . Compensation shall not be paid in the case of coronary or coronary artery disease or cerebrovascular injury unless it is shown that the exertion of the work necessary to precipitate the disability was more than the workman’s usual work in the course of the workman’s regular employment.” In denying compensation, the district court found, “. . . that all of the findings and award of the examiner as approved by the Workmen’s Compensation Director of the State of Kansas should be and hereby are approved, with costs taxed against respondent and the second injury fund.” The director, in affirming the award of the examiner, concluded: "The primary issue on review was whether or not the deceased suffered personal injury by accident arising out of and in the course of his employment for the respondent as that term is presently defined by law, particularly K. S. A. [1970 Supp.] 44-501. This is a heart case and before heart cases are compensable under the 1967 amendment to the Kansas Workmen’s Compensation Act, it must be shown that the exertion of the work necessary to precipitate the disability was more than the workman’s usual work in the course of the workman’s usual employment. The director finds that the claimant has not sustained the burden of proving that the decedent did anything more than the usual amount of work or made more than the usual amount of exertion on the day he suffered a fatal heart attack.” The examiner found that the testimony was to the effect the deceased workman was doing his regular work. In other words, he was doing nothing but the usual job which precluded the claimant from benefits. The issue before this court is simply whether the findings of the district court as set out above and its judgment, are supported by substantial competent evidence. A substantial amount of the testimony before the examiner consisted of depositions of fellow workmen. They testified to the effect that it was not unusual for Calvert to do the type of work he was doing on the day of his death. He often would aid in the unloading of cars whenever they arrived and when he felt like it, even though he was not supposed to engage in that type of work. James F. Roby testified as follows: “Q. Do you yourself, know what he was — immediately preceding or before that coffee break, where he had the attack? “A. They had been unloading steel and he was unhooking a hook off one end of the steel. “Q. Was that unusual for Mr. Calvert? “A. No. “Q. Was that unhooking of the hook in any way strenuous work? “A. The hook would probably weigh maybe ten pounds. “Q. Is it considered rather light land of work? “A. Yes, I would say a seven or eight-year old boy could unhook it if I would show him how.” Harold Green testified as follows: “Q. Did he do this type of work regularly or was it other work? “A. He didn’t do too much of it, no, he would do some of it when he felt like it, you know, but he wasn’t supposed to, but he would do it. You couldn’t keep him out of it, time drags on his hands, he wanted to be doing something, he didn’t have to do it, but you couldn’t keep him from it. “Q. You would pull it out and push it away from the channel, is that right? “A. On top of the channel, slip it out and leave it ride on top of the channel, pull it out enough to slip it out, turn it over on the side and slide back on the channel. That saves you from lifting. If you want to lift them you would pull them way out, bend over and lay them down, that runs into too much work. We don’t use them that way. “Q. And then you would, with one hand, slip this hook out? “A. Yes. “Q. And Mr. Calvert wasn’t lifting this hook? “A. Not particularly, no. “Q. When he took his coffee break, about how long from the time you quit until he had his attack there on the job? “A. I’d say maybe between ten and fifteen minutes. “Q. You were never surprised to see him performing this type of work, though? “A. Never was, because he done it before. “Q. Nothing unusual as far as you were concerned? “A. No, that’s right.” It is conceded by the claimant the decedent occasionally did a measure of physical work even though it was not his duty. From the facts before us, we are required to conclude the judgment of the district court is supported by substantial competent evidence. The claimant did not sustain the burden of proof that the decedent did anything more than the usual amount of work in the coruse of his regular employment on the day he suffered his fatal heart attack. In other words, the evidence was that the decedent was performing his usual work which required no unusual exertion, and the judgment will not be overturned on appellate review. (Muntzert v. A. B. C. Drug Co., 206 Kan. 331, 478 P. 2d 198; see, also, 1 Hatcher’s Digest [Rev. Ed.], Appeal & Error, §§ 507, 508.) The judgment of the district court is affirmed.	[ -12, -24, -40, -99, 10, -31, 10, 26, 71, -18, 39, -41, -49, -9, 13, 45, 112, 21, 81, 59, -13, -77, 23, -85, -46, 115, -71, -57, -69, 107, -10, 31, 77, 32, 14, -43, -26, -120, -59, 88, -52, 20, -5, -19, 89, 16, 48, 122, -42, 95, 17, -114, 59, 42, 30, -17, 13, 44, 91, -82, -48, 112, -117, 13, 127, 16, -95, 68, -100, 111, 88, 30, -40, -79, 32, -32, 16, -90, -57, 52, 35, -87, 4, 98, 98, 17, 21, -51, -24, -72, 6, -118, -113, -121, -74, 57, 58, 11, -107, -99, 122, 52, 30, 124, -2, 85, 78, 44, -117, -114, -76, -80, -49, 96, -100, -117, -21, -123, 50, 113, -36, -78, 94, 4, 115, 63, 87, -112 ]
The opinion of the court was delivered by Schroeder, J.: This is a criminal action wherein the defendant was convicted of grand larceny for cattle rustling contrary to K. S. A. 21-533 and sentenced pursuant to K. S. A. 21-534 in the district court of Greenwood County, Kansas, on May 6, 1970. Appeal has been duly perfected. Trial errors are asserted on appeal for a reversal of the judgment. The facts in the case are essentially the same as those stated in State v. Mae McLaughlin, 207 Kan. 584, 485 P. 2d 1352, because they arise from the same occurrence. In that case Mae McLaughlin, the wife of the appellant herein, was convicted of cattle rustling. On the 23rd day of July, 1967, three 4-H steers, one belonging to Kenneth Pike and two belonging to his daughter, disappeared from a barn on property leased by Pike which was located one mile south of the Farmington schoolhouse in Greenwood County, Kansas. Two of the steers were Angus, weighing approximately 950 pounds, and one of the steers was a Hereford, weighing approximately 1,000 pounds. They were valued at somewhere between $250 and $300. The principal witness upon which the state relied to prove the offense was Freddie Glenn Pope, a confessed accomplice in the crime, with a long prior criminal record. Pope testified the cattle were taken while he and Johnnie F. Wyss, who also confessed to the crime, and Henry D. McLaughlin (defendant-appellant) and his wife, Mae McLaughlin, were on a trip looking for antiques in abandoned farmhouses. Pope testified that upon stopping at a vacant house, the four discovered the three steers in a barn. He said: “There were weeds growing up all around it and you could tell from the driveway it hadn’t been driven frequently. I told Mr. McLaughlin it looked to me like the cattle were hid there. I couldn’t understand why three animals would be at a vacant farmhouse and one being tied up to keep it from jumping the fence or something similar to such. I told him it looked to me like someone stole the cattle and hid them there until they could dispose of them. Mr. McLaughlin said, ‘Do you think we can steal them from them?’ I told him if we had the means to haul them off we could.” After planning to take the cattle the four left to get a four-horse trailer owned by James W. Frisbie to move the cattle. Upon returning to the McLaughlin home near Rosalia, Kansas, Pope and Wyss set out to get Frisbie’s trailer and hitch it to Pope’s truck. When this was accomplished, Pope and Wyss returned to the McLaughlin residence pulling the horse trailer. Between the hours of 8 and 9 p. m. on Sunday, July 23, 1967, Pope left the McLaughlin residence in the McLaughlin car with the appellant and his wife, and Wyss left at the same time driving the pickup truck and pulling the trailer. Upon arrival at the scene the three cattle were loaded in the trailer, and a post-hole auger was taken from the shed and placed in the pickup, the appellant assisting the other two men. Then they all returned to the Frisbie residence near Wichita in Butler County and unloaded the steers in Frisbie’s barn. Pope made arrangements the next day over the telephone with the Haysville packing plant at Haysville, Kansas, to have the three steers slaughtered and packaged. Wyss and Pope delivered the steers to the locker plant that same morning, Monday, July 24, 1967, at approximately 10 a. m. The animals were checked into the plant as Pope No. 1, Pope No. 2 and Pope No. 3. Pope told Mr. Acord, the owner of the locker plant, over the telephone that he wanted the hides returned and he made the necessary arrangements. Later on that same day between 2 and 3 p. m. Pope, the appellant and Frisbie returned to the locker plant for the hides, according to Pope’s testimony. The three men took the hides in the McLaughlin car south to Sumner County and dumped them out. Approximately ten days later Pope was advised the meat had been processed, and he returned to the locker plant along with Frisbie and his wife and the appellant and his wife to pick up the meat. Pope was charged with the crime of grand larceny of neat cattle in Greenwood County and pleaded guilty to the charge. Wyss also pleaded guilty to the offense and was sentenced to the Kansas State Penitentiary. He was an inmate at that institution when he testified at the trial of this case. According to Wyss, he and Pope stole the cattle and the McLaughlins were not involved. Walter Acord, the owner of the Haysville packing plant, testified that Pope brought the three animals to his locker plant, which were slaughtered and processed, and that on or about August 4th or 5th, three men and a woman came to the locker plant to pick up the processed meat, identifying the appellant and Pope as two of the men. Hershal Martin, employed by Mr. Acord on July 24, 1967, at the locker plant in Haysville, said he knew Pope by sight and that Pope returned to the locker plant for the hides after 2 p. m. on the 24th day of July. He testified two men returned with Pope to pick up the hides and he identified Wyss as one of them. Martin threw the hides into the trunk of a car. The appellant testified he did not take the cattle, but was approached by Pope and Wyss at the Frisbie residence on Sunday, the 23rd day of July, 1967, when Pope offered to sell him a beef. He further testified he viewed the cattle at the barn where they were located before they were taken and told Pope he would buy one. He also told Frisbie they were good butchering cattle and Frisbie said he would purchase one. The appellant testified Pope told him the cattle belonged to his mother and they had to be moved or sold. The appellant testified he was not present when the cattle were taken and knew nothing more about them until he was advised by Pope they were butchered and processed, and that he paid Pope $200 for his beef and picked up his beef at the locker plant. The appellant said he was not present when the hides were picked up; that he was at the Haysville locker plant only one time — when he picked up the processed beef. Evidence of the $200 check given by the McLaughlins to Pope, and its alteration by Mae McLaughlin after clearing the bank, was not presented in the trial of the appellant. This evidence was presented only in the trial of the appellant’s wife, Mae McLaughlin. Frisbie was arrested on charges arising out of the incident here related in Butler County, and was discharged at a preliminary hearing. The appellant challenges the trial court’s order overruling his motion for change of venue. To support his motion the appellant presented one affidavit by a citizen of Greenwood County to the effect that the trial was a foregone conclusion, that the minds of the people in the community were made up, and that there was no possibility of an acquittal. The appellant argues there were twenty-one prospective members of the jury panel who had heard of the case, and four of those persons admitted they had formed an opinion. Six of the persons who actually served on the jury had heard of the case but formed no opinion. One person who served on the jury had cattle of her own stolen about the same time the crime in this case is alleged to have been committed. It has long been the law of Kansas that a change of venue in a criminal case lies within the sound discretion of the trial court. Before a change of venue to another county can be granted, it must affirmatively appear that in the county in which the cause is pending there exists such prejudice as to make it reasonably certain the defendant will be denied a fair trial. The ruling of the trial court on this question will not be disturbed if supported by competent evidence and if there is no showing of prejudice to the substantial rights of the defendant. (Davis v. State, 204 Kan. 816, 466 P. 2d 311, and cases cited therein.) The failure of the defendant in a criminal action to present affirmative evidence that prejudice existed in the community so as to make it reasonably certain he could not obtain a fair trial, requires a conclusion that his evidence was totally and completely insufficient to permit the district court to order a change of venue. (State v. Poulos, 196 Kan. 253, 411 P. 2d 694, cert. den. 385 U. S. 827, 17 L. Ed. 2d 64, 87 S. Ct. 63.) Furthermore, prejudice must be established “not as. a matter of speculation but as a demonstrable reality.” (Woods v. Munns, 347 F. 2d 948, 951 [10th Cir. 1965].) The question concerning change of venue has been extensively treated in State v. Turner, 193 Kan. 189, 392 P. 2d 863; State v. Poulos, supra; and Davis v. State, supra. In cases of this nature the state is required to produce no evidence refuting that of the appellant, particularly where the appellant fails to sustain the burden of proof cast upon him to show prejudice in the community. (State v. Anderson, 202 Kan. 52, 446 P. 2d 844.) We find no basis in the record to support the appellant’s contention the trial court erred in overruling his motion for change of venue. The principal point asserted by the appellant is that the trial court erred in overruling his motion to dismiss at the close of the state’s case in chief, because the only evidence implicating him in the crime was the uncorroborated testimony of an accomplice. To support this point the appellant cites early Kansas cases which hold that a jury should not convict upon the testimony of an accomplice alone, unless his testimony is corroborated by other evidence on some material point in issue. (See Craft v. State, 3 Kan. 450; State v. Kellerman, 14 Kan. 135; State v. Adams, 20 Kan. 311; and State v. Greenburg, 59 Kan. 404, 53 Pac. 61.) While these early cases have never been specifically overruled, it has clearly been the established law in this jurisdiction for many years, as at the common law, that the uncorroborated testimony of an accomplice is sufficient to sustain a conviction. In State v. McIntyre, 132 Kan. 43, 294 Pac. 865, it was stated: “. . . it is now well settled that the uncorroborated testimony of an accomplice, if otherwise sufficient, will sustain a verdict of guilty. The credit to be given to the evidence is a matter for the determination of the jury. . . .’’ (p. 48.) Other decisions stating law to the same effect are State v. Carter, 148 Kan. 472, 83 P. 2d 689; State v. Wood, 196 Kan. 599, 413 P. 2d 90; and see Hatcher’s Kansas Digest, Criminal Law, § 288; and 30 Am. Jur. 2d, Evidence, § 1151, p. 327. In Kansas where the uniform rules of evidence have been adopted (effective January 1, 1964) it is to be noted that no statute requires an accomplice’s testimony to be corroborated. It is for the jury to determine the credibility to be given to the testimony of the various witnesses called at the trial. The jury in this case was adequately cautioned by the trial court in its instructions as to the weight to be given the testimony of the various witnesses, and more specifically, the jury was cautioned as to the weight to be given the testimony of an accomplice. Instruction No. 9 given the jury reads: “The court instructs the jury that the testimony of parties aiding, assisting, encouraging, and abetting the crime is admissible; yet their evidence when not corroborated by the testimony of others not implicated in the crime, as to matters material to the issue, should be received with great caution by the jury, and they should be fully satisfied of its truth before they should convict the defendant on such testimony.” No objection was made in the trial court challenging instruction No. 9, nor was a more stringent instruction requested. While the law in this state does not require corroboration of the testimony of an accomplice, corroboration of Pope’s testimony was not entirely deficient. The appellant by his own testimony established that on Sunday, July 23, 1967, he and his wife, together with Pope and Wyss, traveled in Mae McLaughlin’s 1959 Ford to the place where the three head of beef were kept by Kenneth and Karen Pike; that the appellant went in the barn and looked at the cattle; that they all left and returned to Rosalia where the McLaughlins stayed. By his own testimony the appellant stated he and his wife went back to the Frisbie residence near Wichita on July 24, 1967, where Pope and Wyss arrived at about 11 a. m. At that time the three head of cattle were in Frisbie’s bam. An independent state witness employed at the Haysville packing plant testified the hides of the three beefs were picked up on the afternoon of Monday, July 24, 1967. This is highly unusual when processing meat at a locker plant on a custom basis for individuals. The witness testified two men returned with Pope to pick up the hides on this occasion and he threw the hides in the trunk of a car. He identified Pope and Wyss, but not the other person. Pope testified there were three persons who went back to the locker plant sometime between 1 and 3 p. m. on July 24th to pick up the hides, identifying the appellant as one of them. Pope said he took the hides in McLaughlin’s car south to Sumner County and dumped them out. The vehicle Pope used in connection with this case was a pickup truck. The automobile mentioned by the various witnesses was Mae McLaughlin’s 1959 Ford car. From this evidence, corroborating the testimony of Pope, the jury could have found the appellant present driving Mae’s car when the hides were picked up at the locker plant. Picking up the hides of the three head of beef cattle shortly after their slaughter at the Haysville locker plant, and taking them immediately to another county where they were dumped to conceal identity of the cattle, is corroborating evidence of action on the part of the appellant from which the jury could find the requisite criminal intent. By his own admission the appellant testified he and his wife were present in Haysville when the processed meat was obtained from the locker plant. In our opinion the record discloses sufficient evidence to uphold the jury’s finding that the appellant was guilty of the crime charged —grand larceny of three head of beef cattle. The appellant challenges the trial court’s instruction on reasonable doubt. Instruction No. 4 given to the jury reads as follows: “In this connection you are instructed that a reasonable doubt is just what tire words themselves imply — a doubt founded on reason. It is such a doubt as a juror is able to give a reason for. By a 'reasonable doubt’ is not meant a mere possibility or imaginary doubt or a doubt arising from a whim or mere fancy or a sudden change of mind without any apparent or adequate reason therefor, nor can it be based on groundless conjecture. It is that state of the case which, after a comparison and consideration of all the evidence presented to you leaves the minds of the jurors in that condition that they cannot say they have an abiding conviction to a moral certainty of the guilt of the defendant. A juror is understood to entertain a reasonable doubt when he does not have an abiding conviction of mind founded on the evidence or want of evidence to a moral certainty that convinces and directs his understanding and satisfies his reason and judgment that the defendant is guilty as charged.” (Emphasis added.) The appellant challenges the emphasized portion of the foregoing instruction as being erroneous. He contends it is contradictory of instruction No. 3, wherein the jury was instructed on the burden of proof, and that the instruction is confusing. The challenged portion of instruction No. 4 was given by the court in State v. Patton, 66 Kan. 486, 71 Pac. 840, and approved. There, however, Justice Burch dissented and the appellant relies upon the dissent. In State v. Wolfley, 75 Kan. 406, 89 Pac. 1046, the following instruction was approved: “ ‘A reasonable doubt means a doubt which has some good reason for it arising out of the evidence or- lack of evidence in the case; such a doubt as you are able to find in the evidence or lack of evidence a reason for.’ ” (p. 412.) The court there declared: . . Whatever objections there may be to a juror’s being told that in order to regard a doubt as reasonable he must be able to give — that it [is] to state — a reason for it, no harm can result from advising him that no doubt is reasonable unless a reason for it exists, and that is substantially the effect of the instruction under consideration.” (p. 412.) Viewing instruction No. 4 as a whole, we cannot say the jury was misled as to the meaning of “reasonable doubt.” The sentence to which the appellant objects was at the beginning of the instruction. Thereafter “reasonable doubt” was fully defined in accordance with the well established law of this state. Other points asserted by the appellant in the record have been abandoned in his brief. Finding no reversible error, the judgment of the lower court is affirmed.	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The opinion of the court was delivered by O’Connor, J.: This is an action to enjoin the defendants from enforcing and carrying out an order of the Director of Property Valuation of the state of Kansas relating to 1967 assessments for ad valorem tax purposes of. plaintiffs’ gas-producing properties located in Stevens County. The district court granted a permanent injunction and defendants have perfected this appeal. The question presented for our consideration is whether or not the director’s order dated December 15, 1967, was timely issued within contemplation of the provisions of K. S. A. 79-1401 et seq., and particularly K. S. A. 79-1404 (Sixteenth). This case was previously before us (Mobil Oil Corporation v. Reynolds, 202 Kan. 179, 446 P. 2d 715) on appeal from an order of the district court dismissing the action. There we held the allegations of the petition were sufficient to raise a question of an illegal tax levy because the taxing authorities were allegedly proceeding contrary to statute and the trial court had jurisdiction to determine the issue under K. S. A. 60-907 (a). On remand of the case, the trial court heard evidence on the merits and sustained plaintiffs’ motion for judgment on the basis the director’s order was not timely made in that it “. . . upsets the whole scheme and orderly collection of taxes.” To focus the question with which we are confronted requires further amplification of the brief factual statement outlined in our earlier opinion. Plaintiffs individually made due and timely 1967 ad valorem tax renditions to the acting County Assessor (County Clerk) of Stevens County covering their respective gas-producing properties. The renditions were examined and adjusted by the acting County Assessor in accordance with the gas schedule promulgated by the state Department of Property Valuation. Plaintiffs appealed the assessments thus made to the Board of County Commissioners of Stevens County, sitting as the County Board of Equalization. From the testimony disclosed in the record, it appears real estate in the county was assessed substantially lower than 30% of justifiable value (the state ratio study showed urban property assessed at 14%, and rural property assessed at 9% of justifiable value). Because of the disparity, the members of the board . . felt that they could not in good conscience put gas properties on at 30%.” Whereupon the County Board of Equalization, on May 8, 1967, ordered the assessment of oil and gas-producing properties (including those of plaintiffs) at 15% of justifiable value “. . . subject to approval of Property Valuation Department.” Prior to the order being made, Tim Hagaman, an employee of the acting County Assessor, contacted Ronald F. Dwyer, Director of Property Valuation, to ascertain if the contemplated order would meet with his approval. The testimony concerning Dwyer’s attitude is somewhat conflicting. Dwyer’s version of his conversation with Hagaman was that he could not approve the county board’s action, although he could see some moral justification for it. Hagaman’s impression, on the other hand, was that Dwyer indicated he had no authority to approve the order, “. . . but that it would be okay unless something came up, in which case he might have to do something.” At any rate, after receiving this and other information from Hagaman, the County Board of Equalization “assumed” it had tire approval of the property valuation department. No appeal was taken from the order of the County Board of Equalization as authorized by K. S. A. 79-1409 (since amended). The assessment sheets for oil and gas-producing properties in Stevens County were recomputed on the basis of the county board’s order and delivered to the County Clerk, who in turn prepared an abstract of the assessment rolls of the county and forwarded it to the Director of Property Valuation June 22, 1967. (K. S. A. 79-1604.) In the latter part of August, or first part of September 1967, at a meeting of county attorneys in Dwyer’s office, one of the county attorneys told Dwyer that Stevens County officials had cut the state gas schedule in half with respect to the assessment of gas-producing properties. Thereupon, Dwyer called the Stevens County Clerk to learn more about the county board’s action. During the month of September, Dwyer sent a field man to Stevens County to investigate the matter, and satisfied himself that his earlier information was correct. Nothing further was done by Dwyer until his order of December 15, 1967. The law requires that all levies be prepared and certified to the County Clerk on or before August 25 of each year. (K. S. A. 79-1801 [since amended].) The County Clerk then proceeds to pre pare the tax roll by computing the sums to be levied upon all taxable real and personal property. The tax roll must be completed, certified, and delivered to the County Treasurer on or before November 1. (K. S. A. 79-1803.) All taxes are due on the first day of November of each year. (K. S. A. 79-1804.) On October 19, 1967, the County Clerk of Stevens County transmitted to the Director of Property Valuation a statement of valuations and taxes levied for 1967 in compliance with K. S. A. 79-1806. The valuations of oil and gas properties shown on the statement were the same as those shown on the abstract of assessment rolls forwarded to the director June 22 and reflected on the tax roll certified to the County Treasurer before November first. Under date of December 15, 1967, the Director of Property Valuation issued the following order which is the subject of this action: TO: Sarah Etta Medcalf The Duly Elected County Clerk Stevens County, Kansas “You Are Hereby Ordered, pursuant to the authority granted the Director of Property Valuation under the Kansas Statutes (K. S. A. 79-1404, sixteenth), to recompute all gas producing property (both working interest and royalty interest) located in Stevens County, Kansas for 1987 using the state prescribed Gas Schedule. “After said computation the difference in assessed value arrived at from that presently existing on the 1967 tax roll is to be assessed as a 1967 added tax. “You Are Further Ordered to notify the Stevens County Treasurer of the amount of this added tax and direct her to impound this money so that it will be used to reduce the levies for the appropriate taxing districts in 1968.” After receiving the order on December 18, the County Clerk proceeded to recompute the tax roll as directed, and by the time this action was filed, March 5, 1968, the new statements were ready to be mailed. The parties stipulated at trial that all the plaintiffs had paid at least the first half of their 1967 taxes as originally billed to them; that said payments were not paid under protest; and that . . probably most of that money had been spent.” Under the settled law of this jurisdiction, the assessment of property, when done in accordance with law, is an administrative function with which courts will not interfere nor substitute their judgment for the administrative authority. However, where state and local taxing officials do not perform their duties in accordance with the law, the issue presented to the court is not the exercise of their administrative judgment, but the legality of their acts. The courts have no difficulty with their power and authority where taxing officials attempt to proceed without statutory authority or contrary to the statutes; such matters are rightly within the province of the judiciary. (Garvey Grain, Inc. v. MacDonald, 203 Kan. 1, 453 P. 2d 59; Mobil Oil Corporation v. Reynolds, supra; Harshberger v. Board of County Commissioners, 201 Kan. 592, 442 P. 2d 5; Mobil Oil Corporation v. McHenry, 200 Kan. 211, 436 P. 2d 982; Board of County Commissioners v. Brookover, 198 Kan. 70, 422 P. 2d 906; Schulenberg v. City of Reading, 196 Kan. 43, 410 P. 2d 324.) Defendants (Appellants), in seeking to uphold the validity of the directors order, point to the broad powers conferred on him of general supervision and direction over County Assessors in the performance of their duties. (K. S. A. 79-1401.) More specifically, they call attention to provisions of K. S. A. 79-1404 (Sixteenth) (since amended) empowering the director: “To require any county board of equalization, at any time after its adjournment, to reconvene and to make such orders as the director of property valuation shall determine are just and necessary, and to direct and order such county boards of equalization to raise or lower the valuation of the property, real or personal, in any township or city, and to raise or lower the valuation of the property of any person, company, or corporation; and to order and direct any county board of equalization to raise or lower the valuation of any class or classes of property; and generally to do and perform any act or to make any order or direction to any county board of equalization or any local assessor as to the valuation of any property or any class of property in any township, city or county which, in the judgment of said director of property valuation, may seem just and necessary, to the end that all property shall be valued and assessed in the same manner and to the same extent as any and all other property, real or personal, required to be listed for taxation.” [Emphasis added.] Defendants emphasize the fact that the legislature did not impose any time limitations restricting the director’s exercise of the power and authority granted .him by the foregoing statutes. Plaintiffs (appellees), on the other hand, take the stance that the director acted contrary to the statutes in that his order, if enforced, would unduly disrupt the tax procedure and time schedule established by the legislature in Chapter 79 of the Kansas Statutes Annotated, and, therefore, the district court correctly determined the matter. We are inclined to agree. An attempt to interfere with the orderly scheme of taxation gave rise to the original mandamus action in Mobil Oil Corporation v. McHenry, supra. There, a district court, on September 7, 1967, reduced the 1967 assessment valuations of all property in three counties except that owned by the plaintiffs, after successful appeals by the plaintiffs to the state Board of Tax Appeals equalizing the assessment of their gas properties with other property in each of the counties. In the opinion we carefully outlined the tax procedure and time schedule provided for in Chapter 79, with the admonition that the statutes require the work of taxation to be done speedily and to the end that the business of government may be carried on. We further observed that to have permitted interference with the procedure and schedule directed by the legislature in the manner attempted by the district court would have been to introduce chaos into the taxing process. Although our decision in McHenry turned on the district court’s lack of jurisdiction, we indirectly considered the timeliness of the mandamus action with respect to when the tax roll must be completed and certified to the County Treasurer. At page 238 of the opinion we stated: “When the original petitions were filed in this court on October 13, 1967 (Grant and Stanton Counties), and October 16, 1967 (Morton County), it immediately became apparent that time for final action on the matter was of the essence. On or before the 1st day of November, 1967, the County Clerics of the respective counties were required to certify the taxes levied upon the real and personal property of their respective counties to the respective County Treasurers and charge the respective Treasurers with the amount of the respective taxes assessed on the tax roll (K. S. A. 79-1803). The taxes became due on the 1st day of November, 1967 (K. S. A. 79-1804). If proceedings to countermand the order of the district court in each of the private taxpayer actions in the three counties could be delayed beyond the 31st day of October, 1967, the plaintiffs in the private taxpayer actions would have won the first round in the battle to the detriment of the state government and the government of the three counties involved.” The importance which this court has attached to the orderly and timely execution of the legislative scheme of taxation was demonstrated early in our jurisprudence in Benn v. Slaymaker, 93 Kan. 64, 143 Pac. 503. In that case the assessment value of partnership property for the year 1912 was allegedly overstated, but the plaintiff partner did not discover what had been done until after the County Board of Equalization had adjourned. He took no steps to correct the valuation until April 22, 1913, when he presented a petition to the state tax commission for that purpose. The commission ruled it had no authority to rebate or reduce the taxes. Thereafter, plaintiff filed an action in the district court to enjoin execution of a warrant for collection of the taxes. An order of the district court sustaining a demurrer to the petition was affirmed by this court. Although the case is factually distinguishable, it involved the sixteenth subdivision of Section 9347 of the General Statutes of 1909 defining the powers of the tax commission. The text of the statute was identical with that of K. S. A. 79-1401 (Sixteenth) except for the words “tax commission” instead of “director of property valuation.” In fact, the phrase “at any time” upon which the director now places great stress in arguing his order was timely issued, are the same words relied on by the plaintiff in Slaymaker. In rejecting plaintiff’s argument, Mr. Justice Burch, speaking for the court, discussed the statute and its basic grant of authority in language we believe peculiarly applicable to the instant case. “The statute quoted is part of a legislative scheme to secure equality and uniformity in valuation and assessment, upon which the public revenues for the ensuing year may be computed and levied, and the power granted may be lawfully exercised until the work of valuation and assessment has been fully completed. (p. 66.) “While the tax commission has broad discretion in the exercise of its rightful power and need not restrict itself absolutely within arbitrary time limits, it is perfectly manifest that it is to act within the bounds of the scheme of taxation which the legislature has devised. The provision of section 9347, which has been quoted, must be read with section 9352, relating to the work of the tax commission sitting as the state board of equalization, and when valuation and assessment, including equalization, have been completed and closed for a given year, taxes have been levied on the basis of such valuation, the taxing process has advanced to the stage of collection, and the valuation and assessment of property for the next year is in full progress, the commission is without authority to take up the subject of valuation anew whose readjustment would disturb and confuse the financial affairs of the various municipalities depending on the collection of taxes charged on the tax roll. (p. 67.) “. . . If the courts or the tax commission had power to interfere generally a year or more after valuation and assessment have been completed and taxes have been levied accordingly, there would be no certainty or stability to the public revenues provided for a given year.” (p. 69.) Although the director has wide discretion in the exercise of the powers granted him by K. S. A. 79-1404 (Sixteenth), and the legislature saw fit not to restrict him by the imposition of arbitrary time limitations, still, the time for taking action is necessarily circumscribed by the total legislative scheme of taxation. The director’s order of December 15, 1967, clearly violates this fundamental principle. In our opinion, the provisions of the statute do not contemplate the director’s issuance of an order affecting assessment valuations of all gas-producing properties in an entire county at a time when the assessment and the levy phases of the taxing process for the year are completed and the collection phase is well underway. Any attempt to equalize assessments by changing valuations of an entire class of property after November 1 of a given year comes too late. Otherwise, an order of such proportions would virtually destroy the certainty and stability required in our taxing system. The legislature, in establishing an orderly scheme of taxation for a given year, has recognized that there must be a cutoff date (November 1) as a matter of practical necessity. (State, ex rel., v. Dwyer, 204 Kan. 3, 460 P. 2d 507.) The task of equalizing assessments by county Boards of Equalization (K. S. A. 79-1602 [since amended]) and the state Board of Equalization (K. S. A. 79-1409 [since amended]) is required to be accomplished within definite time limitations. We believe the fair import of the provisions of K. S. A. 79-1404 (Sixteenth), when read with the overall legislative timetable, necessitates that equalization action be taken by the director before the date on which taxes are due for a given year. The director is under legislative mandate to exercise general supervision and direction over assessing authorities to the end that all assessments of property be made relatively just and uniform. (See, McManaman v. Board of County Commissioners, 205 Kan. 118, 468 P. 2d 243.) In order to have available adequate information to take whatever timely action he deems necessary, he has authority to promulgate regulations to insure that such information is furnished by local officials. (K. S. A. 79-1441.) Under the facts here, the director, after conducting a complete investigation, was fully advised in September of the action taken by the County Board of Equalization in May. Armed with this information, he had ample opportunity to move out and issue an appropriate order before taxes became due on November 1, just as this court did in Mobil Oil Corporation v. McHenry, supra. The judgment is affirmed.	[ -16, -22, -11, 92, -86, 96, 42, -120, 65, -77, -73, 83, -19, -54, 1, 123, -74, 61, -11, 104, -59, -73, 83, 65, 116, 51, -39, -51, -69, 93, -28, 102, 76, -95, -54, -43, 6, -126, 71, 84, -50, 6, -120, -55, -39, 8, 52, 43, 18, 75, 113, 15, -5, 41, 28, -61, 104, 44, -53, 47, -123, -16, -86, -99, 95, 2, 49, 4, 20, 69, -56, -82, -104, 56, 32, -24, 115, 38, 22, 116, 13, -23, 44, -18, 98, 1, 21, -17, -24, -68, 46, -41, -115, -25, -46, 24, 98, 42, -106, -100, 116, 66, -121, 126, -26, 5, 31, 124, -97, -54, -42, -77, 13, 119, -126, 3, -1, -127, 16, 113, -51, -94, 94, 71, 18, 11, -114, -76 ]
The opinion of the court was delivered by Fatzer, J.: The plaintiff, William E. Baumgardner, commenced an action against the defendant, Doris L. Baumgardner, for a divorce on the grounds of extreme cruelty and gross neglect of duty. The defendant filed a cross petition for divorce alleging the same grounds. Subsequently, and with permission of the district court, the defendant amended her cross petition to include the ground of adultery. Both parties sought an absolute decree of divorce from the other, an equitable division of the property accumulated by them during the marriage, and in addition, the defendant sought alimony in the amount of $50,000. The district court granted both parties a divorce from each other on the grounds of extreme cruelty and gross neglect of duty. The defendant was denied a divorce on the ground of adultery, and was also denied alimony. On appeal, the defendant complains of the district court’s refusal to grant her a divorce on the ground of adultery, the granting of a divorce to the plaintiff on the grounds specified, the division of the property of the parties, and its order refusing to grant her a substantial alimony award. The parties will be referred to as they appeared in the court below. The plaintiff and defendant were married at Caldwell, Kansas, on June 24, 1954, and separated on April 14, 1968. No children were born to their marriage. When the action was commenced, the plaintiff was 36 years of age and the defendant was 34 years of age. Both parties were regularly employed at the Boeing Corporation during the period of their marriage, and at the time of trial on November 21, 1968, the plaintiff was receiving $358 biweekly, or $9,308 annually. In addition to the plaintiff’s regular employment, he realized additional income from square dance calling for the following years and in the following amounts: 1965, $449.39; 1966, $1,378, and 1967, $868. His 1968 gross income from this pursuit at the time of trial was $1,575. The defendant received $231.22 biweekly, or $6,011.72 annually. The defendant first contends the district court erred in refusing to grant her a divorce from the plaintiff on the ground of adultery. The plaintiff candidly admits that the evidence presented to the district court shows he became romantically involved subsequent to the parties’ separation and the filing of his action for divorce. He denied that his romantic involvement was the cause of the breakup of the marriage and did not precipitate the parties’ action for divorce from each other. The defendant admitted she had no knowledge of any adulterous conduct of the plaintiff prior to the filing of his petition, and her cross petition, for divorce. Under the record presented, we think the district court did not abuse its discretion in refusing to grant a divorce to the defendant on the ground of adultery. The district court granted her the relief she prayed for, but granted it on a different ground than that theorized by her. A divorce granted on one ground is as final and effective as a divorce granted on any other ground. It is unnecessary for this court to decide the point whether conduct subsequent to the commencement of an action can be the basis of grounds for divorce. Under the new Code of Civil Procedure, the rights of divorced parties are not altered by the nature of the ground on which the divorce is granted. The record shows the district court received the evidence concerning the plaintiff’s infidelity subsequent to the filing of the action, and that it took that evidence into consideration in granting the defendant a divorce on the grounds of extreme cruelty and gross neglect of duty. She obtained what she sought —a divorce from the plaintiff. At most, the refusal of the district court to grant her a divorce on the ground of adultery does not appear to have prejudicially affected her substantial rights. (Berndt v. Berndt, 175 Kan. 134, 259 P. 2d 197.) We cannot say the district court abused its discretion in any respect. A determination that lies in the discretion of the district court will on appeal be presumed to have been made in the proper exercise of that discretion where the contrary does not appear from the record. An appellant claiming abuse of discretion has the burden of proving that contention. (Roberts v. Roberts, 103 Kan. 65, 173 Pac. 537; Krueger v. Krueger, 174 Kan. 249, 255 P. 2d 621; 5 Am. Jur. 2d Appeal and Error, § 775, p. 218.) See, also, 12 Kan. L. Rev. 27, 33. The defendant next contends the district court erred in granting the plaintiff a divorce on the grounds of extreme cruelty and gross neglect of duty. She argues there is a lack of evidence showing such grounds for divorce, or any corroboration thereof. The point is not well taken. It would not further the interests of either of the parties to detail the evidence. The record has been carefully reviewed and we are of the opinion there was ample evidence to support the district court’s finding granting the plaintiff a divorce on both grounds. It is sufficient to say the evidence established that the defendant’s conduct during the marriage was such as to destroy the legitimate ends of the matrimonial objectives of the parties. Indeed, for the most part, the record is lacking of a denial by the defendant of the several accusations made by the plaintiff. The patient endurance by one spouse of the continuing ill treatment of the other should never be allowed to weaken his or her right to relief. (Brown v. Brown, 171 Kan. 249, 232 P. 2d 603, 32 A. L. R. 2d 102.) The district court heard the parties’ evidence and observed them testify. It fulfilled its duty to determine the weight and credibility to be given to the testimony of their witnesses. Moreover, we believe the corroboration here to be ample as required by the provisions of K. S. A. 1970 Supp. 60-1609 (d). In Haynes v. Haynes, 202 Kan. 83, 446 P. 2d 749, it was said that corroboration need not support each and every detail of the injured party’s testimony, nor is it essential that corroborating testimony alone sustain the judgment. It is sufficient if the corroboration be such as will tend to establish some fact or facts testified to by the complaining party, which, if believed, would justify the granting of a divorce. See, also, Saint v. Saint, 196 Kan. 330, 411 P. 2d 683. On appellate review this court will not overturn findings or a judgment where there is substantial competent evidence to support them. (Cool v. Cool, 203 Kan. 749, 457 P. 2d 60.) The defendant strenuously complains of the district court’s division of the property of the parties accumulated during their marriage. In their brief both parties set forth the accumulated property and their estimated values thereof as reflected by the record. The district corut is authorized (K. S. A. 1970 Supp. 60-1610 [b]) to divide the property of the parties, whether owned by either spouse prior to the marriage, acquired by either spouse in his or her own right after the marriage, or acquired by their joint efforts, in a just and reasonable manner, either by division of the property in kind, or by setting the same or a part thereof over to one of the spouses and requiring either to pay such sum as may be just and proper. There was no real estate involved and it is unnecessary to detail the specific items of personal property awarded to each party. Giving the defendant the benefit of any doubt, and by using her estimated value of the various items of property awarded to each party, a breakdown of the district court’s judgment discloses she was awarded property of the value of $6,593.96 and the plaintiff was awarded property of the value of $4,559.84. In addition, the plaintiff was charged with court costs and pretrial attorneys’ fees totaling more than $870. The record reflects the district court was extremely fair in doing what it was authorized to do under the provisions of K. S. A. 1970 Supp. 60-1610 (b). The defendant now complains of the manner in which the plaintiff spent their earnings during the marriage. She asserts he spent their earnings in the manner of a spendthrift, purchasing several new cars, motorcycles, and expensive square dance calling equipment. Except for the trading of the 1968 Pontiac, the defendant at no time objected to the manner in which the parties’ combined earnings were spent. None of her testimony was critical of any conduct, spending or otherwise, on the part of the plaintiff prior to the commencement of the action. It is unnecessary to belabor the legal points involved in the contention. Our statute (K. S. A. 1970 Supp. 60-1610 [b]) and our decisions (Cool v. Cool, supra; Zeller v. Zeller, 195 Kan. 452, 407 P. 2d 478; Preston v. Preston, 193 Kan. 379, 394 P. 2d 43; Talman v. Talman, 203 Kan. 601, 455 P. 2d 574) confer a great deal of latitude on the district court in arriving at a judgment of the type here involved. The cases cited by the defendant merely reaffirm the power of the district court in that respect, and suggest what considerations it may properly weigh in arriving at a decision. The defendant further complains of action taken by the district court in directing the payment of attorneys’ fees from a joint bank account owned by the parties. Under K. S. A. 1970 Supp. 60-1610 (f) the district court is accorded wide discretion in determining the amount of attorneys’ fees to be allowed to counsel and in directing the manner in which the same are paid, as well as the costs of the action. Such discretionary allowance will not be disturbed on appeal unless it clearly appears from the record the court abused its discretion. (Craig v. Craig, 197 Kan. 345, 349, 416 P. 2d 297.) The record reveals the trial of the action was not unusual. Counsel for each party was allowed additional fees of $750 to be paid from the joint bank account. Those funds were accumulated during the marriage and were subject to an order of disposition as made by the district court. No abuse of the court’s discretion has been affirmatively made to appear. The defendant lastly and bitterly complains because the district court refused to award her alimony. Following the separation of the parties, the defendant lived with her twin sister and shared all living expenses. She was given opportunity to establish her needs with respect to the possible allowance of alimony. The evidence discloses the defendant is a good secretary and has a good secretarial job paying her $6,011.72 annually. She is in average health and has no medical expense of any consequence. Her earnings were considerably more than the estimated amount required for her needs and living expenses. The legal point involved has been stated and restated. In Cool v. Cool, supra, it was said: “Finally, plaintiff complains bitterly because the court failed to award her any alimony. Again we are faced with our fixed rule that in matters concerning the awarding of alimony to a party in a divorce action, the court is vested with considerable judicial discretion, and its order will not be set aside or vacated in the absence of a clear showing of an abuse of that discretion. (Moran v. Moran, 196 Kan. 380, 411 P. 2d 677; Saint v. Saint, supra; Zeller v. Zeller, supra.) There is no fixed rule for determining what proportion of a husband’s estate should be allowed as alimony. The statute, K. S. A. [now 1968 Supp.] 60-1610 (c), merely requires that the allowance be ‘fair just and equitable,’ and the amount determined in the light of circumstances which exist in each case. (Clugston v. Clugston, supra; Preston v. Preston, supra.) No longer is it mandatory, as it was under G. S. 1949, 60-1511, that alimony be allowed to a wife when she is granted a divorce for the husband’s fault. In Moran v. Moran, supra, we said: . . A plain reading of the statute [60-1610 (c)] indicates that its terms are to be invoked when one party’s needs and the other party’s ability to pay are such that support should be ordered. The trial court is possessed of considerable judicial discretion in maldng an award of alimony which is fair, just and equitable under all the circumstances, and absent manifest abuse thereof, its judgment will not be disturbed on appeal . . .’ (p. 386.) “We have made clear the many factors that may be considered in determining what amount of alimony, if any, should be ordered, such as the ages of the parties, duration of the marriage, the property owned by the parties, their respective and future earning capacities; and the question of fault may also be taken into account. (Saint v. Saint, supra; Zeller v. Zeller, supra.)” (1.c. 753, 754.) Giving consideration to all the testimony and under the circumstances as disclosed by the record, it is irrelevant whether this court would have made the same determination on this point as did the district court. However, we cannot say or hold the district court exceeded the bounds of its judicial discretion in denying the defendant alimony. 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The opinion of the court was delivered by Fromme, J.: Appellant was convicted of unlawful possession of a drug (cannabis or marijuana) as proscribed by K. S. A. 65-2502. He was sentenced under K. S. A. 65-2519a for a period of not more than seven years. He appeals from that conviction and sentence. The record indicates the charge and conviction arose from events at a “rock festival” held on May 25, 1969, at Riverside Park in Wichita, Kansas. Detective Coonrod and Detective Costello of the Wichita police department were patrolling the park on that day. From a distance of 60 feet they noticed three persons squatting beneath a tree. The three persons were David Holloway, Vicki Cuda and the appellant, Allen R. Benson. Holloway was putting money in his billfold. The police officers knew that Holloway was reputed to be a dealer in marijuana. They saw the appellant smoke a cigarette in a manner used by persons smoking the drug. Appellant handed the cigarette to Vicki Cuda who puffed on the cigarette and then passed it back to him. The detectives began walking toward the group. Someone in the vicinity shouted a warning. The appellant took one last puff on the cigarette and threw it on the ground. The trio began to retreat from the detectives. The woman went in one direction and the men walked toward a river which runs through the park. One of the detectives retrieved the cigarette butt from under the tree where it had been discarded and proceeded to follow the appellant and his companion. There was an elevation between the tree and the river and the detectives lost sight of the appellant for approximately ten seconds after he topped the rise. When appellant was again in sight the detectives noticed the two individuals had separated. Appellant was at the bank of the river a distance of thirty or forty feet from the detectives. Detective Coonrod saw the appellant stoop over and drop something near the water’s edge. Appellant then dove into the river and began to swim. He returned to the bank on command. The detectives retrieved a wet plastic bag from the river bank where appellant had stooped over before entering the river. The bag contained four matchboxes of a substance later identified as the drug commonly called marijuana. A police chemist tested the substances taken from the matchboxes as well as the contents of the cigarette butt. All proved to be marijuana. The appellant raises six questions of error in this appeal. The first concerns evidence introduced at the trial and the instructions of the court as to possession of the marijuana cigarette. The information charged that: “. . . [O]n or about the 25th day of May, A. D., 1969, one Allen R. Benson did then and there unlawfully, feloniously, wilfully keep and have in his possession and under his control at 500 Nims, Wichita, Sedgwick County, Kansas, for personal use and otherwise, approximately 31.00 grams of Canabis Indica and Cannabis Sativa, commonly called Indian Hemp (Marijuana); Evidence during the trial indicated the weight of the bulk marijuana in the matchboxes to be 9.085 grams, and the marijuana in the cigarette was never weighed. Appellant contends there was a fatal variance between the information, which alleged possession of bulk marijuana, and the evidence of possession of the marijuana which included the cigarette. He argues that the state should have been required to elect on which specific quantity of marijuana they relied for conviction — the cigarette or the marijuana in the matchboxes. We do not agree. The statute (K. S. A. 65-2502) does not require possession of any specific amount of marijuana to constitute a violation of the statute. The allegation in the information as to 31.00 grams was surplusage. The case of State v. Crimmins, 31 Kan. 376, 2 Pac. 574, relied upon by appellant is not persuasive. In that case the defendant was charged with the illegal sale of liquor. The evidence indicated sales had taken place on several separate occasions. Each sale constituted a separate violation of the law. The purpose of requiring an election is to prevent injustice and hardship on the defendant in preparing a defense against a nonspecific charge. In the present case the possession of marijuana was specifically charged to have occurred on May 25, 1969, at 500 Nims, Wichita, Kansas. The specific address of the Riverside Park is 500 Nims. So both the date and place of the unlawful possession were charged. In addition, the activities of the appellant in attempting to elude the officers and dispose of the marijuana did not change a single possession into several violations. The incidents were all parts of a single violation. In State v. McCombs, 163 Kan. 225, 181 P. 2d 473, where defendant was charged with having inflicted great bodily harm upon another, a similar demand to require the state to elect on what facts it would rely for conviction was urged on the court. In answer the court said: “. . . The evidence amply disclosed appellant deliberately attacked Cloyd and that while technically it might be said there were two assaults there was in legal contemplation only one affray. The two assaults were part of one and the same complete affray. The time between the attacks was momentary. It lasted only long enough for some of the bystanders to separate appellant from his victim. Appellant immediately made the second attack. The motion to elect was properly overruled.” (p. 229.) In the present case the evidence indicated the appellant had in his possession a cigarette containing marijuana and a plastic bag containing additional amounts of the drug. It is the possession of the drug which is made unlawful. The information, disregarding the surplusage as to the number of grams of the drug, sufficiently advised the appellant of the time and place of the particular offense. There was no hardship or injustice placed on appellant in making his defense to this single charge of unlawful possession. Appellant raises a further question as to the court’s instructions concerning what constitutes possession or having under his control this narcotic drug. It was stated in the instructions that possession denotes physical dominion or control over the prohibited article, that no particular period of physical dominion or control is necessary and that if a person has a marijuana cigarette in his possession and control with the intent to possess the prohibited drug such a possession is sufficient under the statute. We have carefully examined all the instructions to the jury and taking them as a whole find nothing improper or prejudicial in the instructions given which would constitute reversible error. Appellant’s next contention is that the court committed prejudicial error in not discharging the appellant at the close of the state’s evidence because, through oversight, the exhibits of marijuana were not formally introduced and admitted into evidence in the state’s case in chief. This oversight was discovered later in the trial and the exhibits were all introduced and admitted into evidence when the state’s rebuttal evidence was introduced. We see no merit to this contention. The testimony of the police officers and of the police chemist was sufficient if believed to sustain the charge. The physical exhibits were before the court and jury while testimony was being given. In State v. Oswald, 197 Kan. 251, 417 P. 2d 261, it was said: “This court has said when an exhibit has been before the court and jury, subject to their inspection for all purposes of the trial the objection cannot prevail on appeal. (State v. Bowman, 80 Kan. 473, 103 Pac. 84.) Such an oversight occurring either in the trial of this case or in preparing the record on appeal would be a technical error or defect mentioned in K. S. A. 62-1718, which reads: “ ‘On an appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.’” (p. 255.) In addition, the technical error in failing to offer these exhibits into evidence was cured by their formal admission later in the trial. Appellant’s next point of error arises from his charge that all prospective jurors in his case were allowed to sit in the courtroom prior to his trial and observe another defendant in a wholly unrelated case enter a guilty plea. He charges that said defendant received probation from the judge and that by reason of this the jurors were more inclined to find appellant guilty. This contention was raised by appellant in his motion for new trial. A careful search of the record fails to disclose any of the facts as alleged. Therefore, the question is not before us in this case and cannot be a basis for relief. However, it would seem to be the better practice to exclude prospective jurors from the courtroom during proceedings in unrelated cases where pleas of guilty are accepted and probation granted. Such proceedings may well influence the prospective jurors and tend to confuse the separate cases in their minds. If this practice is being allowed we urge its discontinuance. The next point raised on appeal is directed toward the effect of an oral statement interpolated by the judge between portions of the written instructions read to the jury. After reading that portion of the instructions which states it is unlawful in Kansas for any person to possess marijuana, the judge orally remarked, “that some people can have legal possession of marijuana, but that is not applicable in this case.” Appellant contends this extemporaneous oral statement violates K. S. A. 62-1447 which requires the instructions to the jury to be in writing and filed among the papers of the cause. It is difficult for us to classify this oral remark of the trial judge, interpolated between written instructions, as an instruction on the law of the case which would govern the jury in its deliberations. It is true such oral comments during the reading of the instructions add nothing beneficial to the law of the case. Such practice is not approved by this court. However, the present statement is clearly distinguishable from those which we have held to be reversible error. (See State v. Stephens, 168 Kan. 5, Syl. ¶ 4, 209 P. 2d 924.) Such a statement more nearly falls in a category with those considered in State v. Potter, 15 Kan. 302, Syl. ¶ 8, and State v. Myers, 173 Kan. 253, 245 P. 2d 1200. In State v. Oswald, supra, a written answer to a juror’s question was considered not to be an independent statement of a rule of law of the case and therefore not violative of the statute requiring instructions to be submitted in writing before the jury retires to deliberate. In any event this particular volunteer statement does not appear prejudicial to the appellant. At most it could only be prejudicial to the prosecution, for it indicated possible instances where pos session of the drug is lawful but it did not disclose under what circumstances such was true. We hold this oral extemporaneous statement by the court was a technical and inadvertent error to be disregarded by this court under K. S. A. 60-2105, since it does not affirmatively appear to have affected the substantial rights of the appellant, and it appears upon the whole record that substantial justice has been done. The final contention of appellant is without substance. A claim is made the trial court abused its discretion by denying probation to the appellant. Under the probation statute as it previously existed (G. S. 1949, 62-2214) and the case law (See Peay v. Hand, 184 Kan. 182, 334 P. 2d 369) the granting or termination of a parole was not subject to review by an appellate court. Although the probation statute in effect when appellant was sentenced (K. S. A. 62-2239, now K. S. A. 1970 Supp. 21-4603) does not contain the specific statutory provision to limit appellate review of an order granting or denying probation, we adhere to our prior position. The granting and revocation of probation is a matter entrusted by the legislature to the trial court and should remain there. An appellate court has no personal contact with an applicant for probation and is in no position to evaluate and determine the necessary factors upon which any probation should be based. Probation is a continuing relationship requiring constant supervision. This an appellate court cannot provide. The granting of probation is exclusively a function of the trial court and we hold a decision of the trial court denying probation is not subject to review by an appellate court. The judgment of conviction and sentence is affirmed.	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The opinion of the court was delivered by Price, C. J.: This was an action by the administrator of the estate of decedent grantor and five of his children to set aside a deed given to another one of his children (and his wife) on the grounds that the grantee son occupied a fiduciary and confidential relationship with his father and that the deed was the product of undue influence and was without adequate consideration and void. The trial court set aside the deed. Defendant grantees have appealed. Because of the nature of the case and questions involved, it is necessary to detail the evidence at some length. The grantors in the deed were L. W. Werth and his wife Rosa. They will be referred to as Mr. Werth (or father) and Rosa. The grantees in the deed were Emil Werth and his wife Victoria. They will be referred to as Emil and Victoria. Emil is a son of the grantors. Together with the administrator of Mr. Werth’s estate, the plaintiffs are other children of Mr. Werth and Rosa, and are brothers and sisters of Emil. Mr. Werth and Rosa were long-time residents of La Crosse. The deed in question was dated June 24, 1965, and was executed by them on July 23, 1965. It was recorded on August 6, 1965. Mr. Werth was about 85 years of age and Rosa about 80. He died in May 1966 and she in August 1968. This action was filed in July 1967, and was tried in January 1969. We summarize plaintiffs’ evidence. Leonard Werth (a plaintiff): He was the oldest of ten children of Mr. Werth and Rosa. For a number of years, under an oral arrangement with his father, he farmed two quarter sections of land belonging to his father. In the latter part of 1964 the father demanded a written lease. He described his father as being a man who “knew what he wanted and how he wanted it done, and as being strong-willed”. Following hospitalization in 1963 his father appeared to have undergone a “personality change”, and along about this time Emil (defendant grantee) became more “attentive” to his father. Regina Basgall (a plaintiff): She was the youngest child of Mr. Werth and Rosa. Prior to the time her father was hospitalized in 1963 he was a very “strong-willed” man and dominating in nature, but that later a “change” came over him. In November 1965 her father said that he had leased his land to Emil for three years for $12,000, that the money was in the bank, and her mother Rosa appeared happy about the matter. Ferdinand Werth (a plaintiff): He was a son of Mr. Werth and Rosa. Prior to his father’s illness in 1963 he was a stem and dominant type of man, but later underwent a “change”. In December 1965 he (the witness) received a Christmas card addressed in his fathers handwriting. Instead of his street address in Great Bend was written his telephone number. Upon his father’s release from the hospital Emil appeared much more “interested” and closer to his father. Christine Suchy (a plaintiff): She was a daughter of Mr. Werth and Rosa, and lived in Great Bend. Prior to his illness, her father was “quite a man”, strict, and expected and demanded obedience from his children. There were times in 1964 and 1965 when her father did not seem to know her. In the fall of 1964 Rosa became ill and she (the witness) took her parents to her home in Great Bend in order to look after them. Emil did not approve of the arrangement and in the latter part of October 1964, came and removed the parents back to La Crosse. The witness was not at home at the time. In the summer of 1965 her parents — categorically, at least — denied having sold the farm, and spoke critically of Emil. Following Emil’s removal of her parents back to La Crosse her father was not as friendly to her as he had been. Armella Freighberger (a plaintiff): She was the oldest daughter of Mr. Werth and Rosa, and lived in Great Bend. Prior to her father’s illness in 1963 he was strong-willed, determined, and “made up his own mind on things”, but on occasions in 1965 he appeared rather “confused”, failed to recognize her at times, and was not the same self-reliant person he had been. We now summarize defendants’ evidence. Robert Hanhardt: He was an accountant, and for a number of years had prepared Mr. Werth’s income tax returns — the last time being on March 10, 1965 — Just a few months prior to the execution of the deed in question. He described Mr. Werth as being completely competent in business affairs, that he knew what his property holdings were, their value, what he wanted to do with this property, and that he was a man “who made his own decisions”. J. E. Hester: He was the manager of the Federal Land Bank Association of Lamed. He had known Mr. Werth since 1952 and saw him in La Crosse from time to time. In June 1965 Emil came to his field office in La Crosse to make application for a loan, saying that he was purchasing some land from his father for $12,000. Later that day the witness went to the home of Mr. Werth in order to verify the details of the transaction as told to him by Emil. Mr. Werth stated that according to his will he was leaving the SW quarter to Emil and was selling him the NW quarter — but that “he was deeding Emil the whole half section now”. He also mentioned that he was selling him the one quarter at a reduced price because Emil was going to look after and take care of him. He further told the witness that he “knew this is probably going to cause dissatisfaction with the children, but this is the way I want it”. In 1920 Mr. Werth had purchased the half section for $17,000. Because of past experiences in land transactions involving elderly people, and because of Mr. Werth’s comment that it would probably cause dissatisfaction with the other children — the witness had requested a doctor’s certificate as to the health and mental condition of Mr. Werth and Rosa. (This will be referred to later.) He was present in the home of Mr. Werth on July 23, 1965, when the deed was signed. The local banker, William Moeder, also was present. They discussed the deed and its provisions with Mr. Werth and Rosa, and it was read aloud. There was nothing in the demeanor, conduct or actions of Mr. Werth and Rosa to cause him to think they were incapable of giving a deed, and they did not appear to be under the influence of anyone. Both understood they were signing a deed and were competent to transact their business affairs. He had not been aware of the fact the other children felt their father had undergone a “change in personality” following surgery in 1963, and neither did he know that Emil had a power of attorney from his father. Dr. Robert L. McCorkle: He lived in LaCrosse and was the Werth family physician. During 1965 Mr. Werth was coherent and competent to transact his personal affairs. At the request of J. E. Hester (above) he made an examination of Mr. Werth and Rosa on June 29, 1965 and made a written certificate of his findings. In this certificate he stated that he had talked with them about their land and what they planned to do with it. They were fully cognizant that Mr. Hester and Emil had discussed the matter with them and that they planned to sell it to Emil. He further stated that both were fully competent to execute a deed and to transact their business affairs. He had been treating them for high blood pressure, and conceded that their “condition” varied from time to time and that an individual suffering from advanced arteriosclerosis might be somewhat more subject to suggestion and influence. William Moede: He had been in the banking business at LaCrosse since 1926 and had known Mr. Werth, Rosa and their children for many years. He had for years serviced Mr. Werth’s account at the bank. Pursuant to a telephone call from J. E. Hester he went to the Werth home on July 23, 1965, to take the acknowledgement — as a notary public — of the signatures of Mr. Werth and Rosa on a deed. When he arrived they were sitting in the living room — alone in the house. Having known them for years — part of their conversation was in German. They discussed the transaction, and the Werths recognized fully that they were selling the land to Emil for $12,000. Mr. Werth remarked that such amount “was probably more than Mommie and I will ever need”, and that they could depend on Emil and his wife Victoria to take care of them in the future. J. E. Hester arrived shortly — with the deed. The four of them discussed it — and Rosa said that “this is what we have been wanting to do and is what we should have done long ago”. A few minutes later Emil and Victoria arrived. Mr. Werth and Rosa signed the deed. Mr. Moeder took their acknowledgement as a notary. Neither Mr. Werth nor Rosa appeared to be under the influence of anyone — and “drey knew what they wanted to do— why they wanted to do it — and that they were going to do it”— and that they signed the deed as a free and voluntary act on their part. The deed was held in escrow at the bank pending final closing of the Federal Land Bank loan to Emil. On August 6, 1965, the deal was closed and a check for $12,000 was handed to Mr. Werth and Rosa at the bank. After a short discussion Mr. Werth decided on two savings certificates at the bank — $8,000 for one year and $4,000 for six months. Walter Shoendaller: He lived at LaCrosse, and was a farmer. Mr. Werth was his uncle by marriage and he had known him, Rosa and all the Werth children all of his life. He had noticed no change in Mr. Werth following his illness in 1963, and described him as being “a man of his own mind and when he made up his mind that was it— and nobody changed it for him”. In 1963 Mr. Werth had complained to him about the tenancy of Leonard, and that Leonard had not paid him for some farm machinery. Victoria Werth: She was the wife of Emil, and a grantee in joint tenancy in the deed. On about June 11, 1965, she heard Mr. Werth tell J. E. Hester that he “had never given Emil anything compared to the other boys”. Her testimony as to the actual signing of the deed was substantially as testified to by J. E. Hester and William Moeder, above. Mr. Werth had a strong personality, was determined, and was not under the control or domination of anyone. Emil Werth: He was a son of Mr. Werth and Rosa, and a grantee in joint tenancy in the deed. In May 1965, Mr. Pius Moeder, who was his father’s neighbor, told him that his father wanted to see him. He went by the next day, and his father told him of his desire to sell the NW quarter for $7,200 — the father retaining a life estate, and he inquired if Emil was interested. Several days later they again conferred. Emil stated he would prefer to pay more money— without a life estate — on account of possible financing problems. A price of $12,000 for the NW quarter was agreed upon, and his father remarked that he would “give him the SW quarter now instead of having him wait until his death to receive it through his will”. Accordingly, the witness proceeded with the loan application. His testimony as to the execution of the deed by his father and mother on July 23, 1965, was substantially the same as that of the other witnesses heretofore related. His father and mother had executed a power of attorney to him in 1963, but he had never exercised any of the rights under it prior to his father’s death. From time to time his father discussed with him the problems he was having with the other children. Not until after his father’s death was he aware of a codicil to his will in which the SW quarter was devised to him. He felt that his father trusted him and had confidence in him. He admitted that in 1938 he had been convicted of a felony in the state of Colorado. In rebuttal — for plaintiffs — Christine Suchy testified that in the summer of 1965 she and her sister Armella saw William Moeder at the bank in LaCrosse and he told them their father had sold the land, that he was not “in the deal but that he could have told their father some things but that as it was his land, he did not, and just thought Oh, Well”. She further testified that in 1964 her father had received an offer from Pius Moeder to buy the two quarters for $40,000 but that he refused — commenting that he “was not so old that he had to get rid of his property and that he had kids to take care of”. In rebuttal — for plaintiffs — Regina Basgall testified that in the fall of 1964 her father told her that he had received an offer from Pius Moeder to purchase the two quarters for $40,000. In rebuttal — for defendants — William Moeder testified that in the summer of 1965 Christine Suchy and possibly Armella, her sister, came to the bank and inquired what was paid for the land and what was done with the money. He advised them it was on time deposit. He did not believe that his father, Pius Moeder, had made an offer to buy the land, because his father, whose confidence he had — had never consulted him about it. In addition to all of the foregoing, the evidence also was to the effect that as of the summer of 1965 the fair market value of the two quarter sections was about $42,000. In November 1963 Mr. Werth and Rosa executed a general power of attorney to Emil. It was drafted by Mr. Driscoll, EmiTs attorney, but rights under it were never exercised by Emil (and the court so found) until after his fathers death. Medical records established that Mr. Werth was discharged from the hospital on January 1, 1964, and was not again hospitalized until October 19, 1965 — for a two-day period. In a second codicil to his will under date of December 31, 1963, Mr. Werth devised the SW quarter to Emil with the proviso that he pay the total sum of $2,000 to his five sisters within two years from testator’s death — such payment to be a lien on the land so devised until paid. In rendering judgment the trial court made extensive findings of fact — 40 of which were largely a recital and summary of the evidence substantially as heretofore related. In addition, the court found that when discussing business matters with Robert Hanhardt — the accountant — Mr. Werth said he had sold the land for exactly what he had in it — and that such discrepancy was evidence that he was not in full possession of the facts as a well-informed business man should be. Finding No. 41 reads: “41. While there is no direct evidence on this point, this Court finds from all the evidence that L. W. Werth did not know the fair market value of his land at the time he conveyed it to Emil. He considered it to be much less than it actually was. He was ignorant of the true extent of the inflation that had taken place in the 1960’s and he did not know that it was comparatively easy to borrow $12,000.00 or more on farm land worth as much as his was worth. He was not in tune with the times. This is one of the many reasons he needed independent advice which he did not get from Hester or Moeder, and which advice he was entitled to have furnished him whether he wanted it or not, by-Emil as his confidential and fiduciary advisor. While he was a man who was mentally competent, he did not have knowledge and was in no position to form an intelligent judgment as to all of the business problems entailed in a land transaction that deprived him of at least 60% of the assets of his estate. He possibly knew what he was doing, but he did not know and understand its consequences. He did not know that Emil’s promise to care for him and Rosa could not be legally enforced. He did not know his land was worth over $42,000.00, and that he could just as easily borrow $12,000.00 against it as could Emil. Had he been so advised, and had he understood, it is safe to conclude from the evidence that he would not have completed the sale. He had been a shrewd business man. He was not one at the time he made the sale of the land to his son Emil.” Conclusions of law Nos. 1 through 5 read: “1. Although the mere relationship of parent and child does not raise a presumption of confidential and fiduciary relationship, the evidence in this case discloses that there was a strong confidential and fiduciary relationship between L. W. Werth and his son, Emil Werth, during the period from 1963 to the time of his death and thereafter with Rosa Werth, his mother, until her death. “2. Whether or not a confidential or fiduciary relationship has been abused, to a great extent, depends on the particular facts and circumstances of the individual case. There are no exact definitions or fixed definite boundaries for that class of human relations commonly known as confidential and fiduciary. These relationships are based on principles of common honesty and require fair dealings between the parties. In this connection this Court finds that Emil Werth did not deal fairly with his father and mother with reference to his purchase of their lands. “3. Where a confidential relationship exists between grantor and the grantee of a deed, there is a presumption that the deed was obtained by the grantee through undue influence, and because of that presumption the burden of proving that the transaction was conducted in good faith and was not the result of the exercise of any undue influence or an abuse of the confidential relationship, is on the grantee. The grantee must show the utmost of good faith on his part. “4. A grantee of a deed from a grantor with whom he enjoyed a confidential and fiduciary relationship is required to show as evidence of his good faith in adhering to the duties imposed on him by said confidential relationship, that the grantor had independent advice, or at least had opportunities for independent advice and refused it, and that he, said grantee, recommended and instructed the grantor that such independent advice was prudent, judicious and desirable. The defendants in this case failed to sustain the burden of proof with reference to compliance with the general rule that their grantors, L. W. Werth and Rosa Werth, had independent advice. In the alternative they failed to sustain the burden of proof that it was proper in this case that an exception to the general rule should be followed, viz: that where a person supposed to have been at a disadvantage was of strong and independent mind, and in a position to form an intelligent judgment, and the transaction was fair in all respects, refused or would have refused independent advice if offered or made available to him. The evidence disclosed that while L. W. Werth was strong-willed and would probably refuse advice given to him by most of his children, he would, nevertheless, have seriously considered following the advice of his son, Emil. Emil was under an obligation to insist that his father and mother have independent advice concerning this transaction between them that so obviously inured to Emil’s personal benefit. “5. A lack of good faith on the part of Emil and evidence of the exercise of undue influence by him is further substantiated by the inadequacy of consideration paid by him to his- father and mother. Emil paid his parents $12,000.00 for land worth more than $42,000.00, and to malee it even more inadequate he borrowed all the money on the property he was receiving, an act which L. W. [Werth] and Rosa Werth could have done themselves if they had been so advised.” Accordingly — the court held the deed to be void and of no force and effect — and set it aside. The grantees — Emil and his wife Victoria — have appealed. We believe the court’s ruling to be erroneous and that the judgment must be reversed. So that there will be no misunderstanding about the matter — in considering this case we are fully aware that it is what frequently is referred to as a “fact case” — that findings of the trial court, when supported by any substantial evidence, must stand and are not to be set aside on appeal even though there is evidence which would support a contrary finding, that we are not to weigh the evidence— and that the scope of appellate review is to determine whether findings are so supported. Inherent in the rule also is the duty to determine whether the conclusions of law are supported by the findings of fact. Stripped to its bare bones — the basis of the trial court’s ruling appears to be that Emil occupied a fiduciary and confidential relationship with his parents — that the deed was procured through undue influence exercised by him — and, there being no showing of independent advice — the deed must fall. Assuming — without deciding — there is substantial' evidence to support the finding of such relationship we find no substantial evidence to support the finding of undue influence. In fact, all of the evidence is to the contrary. It is quite true that Mr. Werth was well along in years — that he had been hospitalized — from time to time had been under the care of a physician and, according to some of his children — was not the “same person” he had been. Under like circumstances — this of course could be said of many people. The facts of the negotiations leading up to the deed and its actual execution have been related. All of the evidence establishes that Mr. Werth and Rosa were fully competent, knew what they were doing, and why — and that the deed was their free, independent and voluntary act. In Cersovsky v. Cersovsky, 201 Kan. 463, 441 P. 2d 829, it was said that in order for a court to be justified in setting aside a deed on the ground of undue influence it must be proved that at or about the time of the execution there was an influence bearing upon the will of the grantor so potent as to destroy his free agency and to substitute the will of another; that undue influence does not consist of mere gratitude for kindness, affection or esteem where a conveyance is induced thereby, nor does it operate in the way of suggestions, entreaties or importunities short of overpowering a grantor’s will; that the test of undue influence is whether the party exercised his own free agency and acted voluntarily by the use of his own reason and judgment, and that the mere fact there may have been power, motive and opportunity to exercise undue influence or overreaching does not permit the inference that such influence was exercised, (p.467.) In Frame, Administrator v. Bauman, 202 Kan. 461, 449 P. 2d 525, it was said that a confidential relationship does not poison or brand as fraudulent every transaction between parties, one of whom occupies a fiduciary status toward the other; that where good faith has been established on the part of the beneficiary and no undue influence has been exerted and where the transaction under scrutiny is shown to have carried out the true and freely formed intentions of the grantor the law does not stigmatize it as fraudulent and void simply because of the relationship existing between the parties, and that rules applicable to transactions between individuals where the relationship exists are not intended to preclude gifts which honestly reflect the unfettered wishes of those who make them, but rather are intended to prevent persons who stand in positions of confidence and trust from taking advantage of their positions at the expense of those entitled to their loyalty and protection. (pp. 467-8.) See also Jernberg v. Evangelical Lutheran Home for the Aged, 156 Kan. 167, 131 P. 2d 691 at page 173. As bearing on the question whether Emil exercised undue influence on his parents the trial court apparently attached considerable weight to the fact there was an inadequate consideration. The undisputed facts are that years ago Mr. Werth paid $17,000 for the two quarter sections. As of 1965 they were worth about $42,000. The sale here was of the NW quarter for $12,000. In the second codicil to Mr. Werth’s will the SW quarter was devised to Emil— with the proviso that he pay to his sisters the sum of $2,000. Mr. Werth explained that both quarters were to be included in the deed — saying that he “was giving the SW quarter to Emil now rather than making him wait until after his death”. It cannot be denied that Mr. Werth was entirely within his rights in doing what he did. In Bowen, Administrator v. Hathaway, 202 Kan. 107, 446 P. 2d 723, it was said— “The plaintiff-administrator contends the consideration paid for the deed was inadequate. Even though the consideration paid by defendant for the remainder interest in the land may not have been equal to the full market value of the land it was an adequate consideration. It was legally sufficient to render the deed operative to pass title to the property. In such case the amount paid bears only upon the question of undue influence.” (p. 111.) In order to establish undue influence in cases of this type the law requires more than mere opportunity to exert it — or suspicions on the part of those who feel aggrieved. In our opinion a careful examination of this record discloses no substantial evidence whatever to support a finding or conclusion that this deed was the result of undue influence in procuring it. The trial court also based its decision on the lack of independent advice. In In re Estate of Carlson, 201 Kan. 635, 443 P. 2d 339, it was held— “The requirement of independent advice is designed to provide assurance that the aged or infirmed or otherwise dependent person conferring the benefit knew what he was doing and did it of his own free act and will, and to see that no undue advantage was taken of him. (Syl. 5.) “The rule of independent advice is applicable only under circumstances where the evidence warrants it. Our decisions do not require application of the rule where the beneficiary or party upon whom is cast the burden of proof presents substantial evidence that the gift, deed or contract was made in good faith, not induced by undue influence, and for a valuable consideration.” (Syl. 6.) See also the Frame case, above, syl. 9, and corresponding portion of the opinion. Under the evidence in this case there simply was no room for application of the rule requiring independent advice. We find no substantial evidence in the record to support a finding or conclusion that this deed was procured through undue influence exerted by Emil or anyone else. To the contrary — all of the evidence establishes that Mr. Werth and Rosa were competent, that they knew what they wanted to do, and why — and that the execution of the deed was their free, knowing, independent and voluntary act. Accordingly — the judgment setting aside the deed is reversed.	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The opinion of the court was delivered by Harman, C.: This appeal involves interpretation of a jury’s answers to special questions upon which the trial court rendered judgment for the plaintiff in a suit for personal injuries arising out of a bicycle-automobile collision. Inasmuch as the parties have stipulated that the jury’s answers to the special questions were supported by ample competent evidence, we have little in the record as to the circumstances of the collision. However, we glean that plaintiff, a thirteen year old boy, was riding his bicycle southeasterly on Main street, near its intersection with Twenty-third street, in Hays, Kansas, and while in the process of turning was struck by an automobile driven by the defendant, eighteen years of age, who was driving in a southerly direction on Main street. The parties went to trial, and the jury was instructed, upon the issues of negligence, proximate cause, contributory negligence and the doctrine of last clear chance. The instructions included the following: “No. 9 “The plaintiff has also alleged as a basis for recovery against the defendant, the doctrine of Last Clear Chance. Before the plaintiff can recover under this particular doctrine, the following elements must be established: “(a) The plaintiff by his own negligence placed himself in a position of peril from which he could not extricate himself. “(b) The defendant saw the plaintiff in a position of danger, or in the exercise of ordinary care should have seen plaintiff in such position, and by the exercise of ordinary care could have avoided injuring the plaintiff. “(c) The defendant failed to exercise such ordinary care. “(d) As a result of such failure on the defendant’s part, the plaintiff was injured. “If all the conditions just mentioned are found by you to have existed with respect to the occurrence in question, then under such conditions the law holds the defendant liable for any injury sustained by the plaintiff as a direct result of the occurrence, despite any contributory negligence of the plaintiff. “No. 10 “You are instructed that all issues of fact for the jury’s determination are being submitted to the jury in the form of special questions, to which your answers will be special verdicts and your answers to the special questions will constitute your special verdict under all of the instructions of the court. “Your answers to these special questions must be reached unanimously by you. When you have completed your answers to these special questions, which answers constitute your verdict, sign them by your foreman and return with them into court. “No. 11 “A proximate cause of an injury or loss is that cause which in the natural and continuous sequence, unbroken by efficient intervening cause, produces that injury and without which the result would not have occurred. “There may be more than one proximate cause. “No. 13 “Contributory negligence is conduct which falls below the standard to which an ordinary, prudent person should conform for his own protection and for the protection of property under his charge, and which is a legally contributing cause cooperating with the negligence of the opposing party in bringing about the injury or damage complained of.” No general verdict was submitted to the jury; instead, special verdicts in the form of special questions were submitted under K. S. A. 60-249 (a). The record on appeal reveals the following occurrence during the trial: “After going to the jury room for their deliberations at 1:27 P. M. of May 15, 1969, the jury returned to the courtroom at 3:10 P. M. and the following further proceedings were had: “The Court : Gentlemen of the Jury, the bailiff has delivered to the court a message in writing from the jury, signed by the foreman, reading as follows: ‘Can question No. 1 and 3 both be answered yes? If so, and if they are both answered yes, does this in itself demand under the law a verdict in favor of the defendant?’ Also, ‘Please define proximate cause.’ Signed by the foreman. “Now, there are two questions there. I will take the first one first. Gentlemen of the Jury, under the Court’s instructions you are to follow all of the Court’s instructions and answer the questions in the light of the Court’s instructions and the evidence, and the Court will determine any liability, if any, from your answer to all of the special questions. And you will note that I pointed this out, and I will read the last special question, which is No. 6. ‘Although the Court will determine liability, if any, from your answers to all the foregoing questions, please state from a preponderance of evidence the amount in money you find will fully compensate the plaintiff, Michael G. Rohr, for the damages sustained by him.’ “You will note that under the Court’s instructions and the special questions you are not asked to specifically determine liability, the Court will make that determination, the judge will make that determination from your answers to all of the special questions. And in answering these special questions, you are to follow all of the Court’s instructions. Now, I think that answers your first question. “Now, the second item in the message sent to the court is, ‘Please define proximate cause.’ Gentlemen of the Jury, that term is defined in the Court’s instructions in Instruction No. 11, and I will read instruction No. 11 again. ‘A proximate cause of an injury or loss is that cause which in the natural and continuous sequence, unbroken by efficinei intervening cause, produces that injury and without which the result would not have occurred. There may be more than one proximate cause.’ “Possibly you overlooked that definition there, but it is in the instructions —again I will point out Instruction No. 11. “(The jury then returned to the jury room.)” The questions submitted to the jury and the answers returned were as follows: “Special Questions and Special Verdicts “1. Do you find from a preponderance of evidence that at the place of the collision, the defendant William F. Henderson, was negligent in a manner alleged in plaintiff’s petition, which was a proximate cause of the collision? “Answer: Yes “(Yes or no) “2. If you answer the foregoing question ‘yes’, then state the act or acts of William F. Henderson that constituted such negligence. “Answer: Failure to reduce speed under prevailing conditions; attempting to overtake and pass under unsafe conditions namely, on a curve and at an intersection. “3. Do you find from a preponderance of evidence that at the time and place of the collision, the plaintiff Micahel G. Rohr was negligent in a manner alleged in the defendant’s answer, which was a proximate cause of the collision? “Answer: Yes “(Yes or no) “4. If you answer the foregoing question ‘yes’, then state the act or acts of Michael G. Rohr that constituted such negligence. “Answer: Driving his bicycle on other than the right half of the roadway. Making an abrupt turn without giving any signal. “5. Do you find from a preponderance of evidence that defendant William F. Henderson had the “last clear chance’ to avoid the collision, as that term is defined in instruction No. 9? “Answer: Yes “(Yes or no) “6. Although the court will determine liability, if any, from your answers to all the foregoing questions, please state from a preponderance of evidence the amount in money you find will fully compensate the plaintiff, Michael G. Rohr, for the damages sustained by him. “Answer: $6,500.00.” Upon these answers the trial court rendered judgment for plaintiff for $6,500.00. Defendant has appealed. Appellant’s contention is the doctrine of last clear chance is eliminated as a means of recovery upon a specific finding that a plaintiff’s negligence was a proximate cause of his injury. He asserts the jury’s finding of contributory negligence compels entry of judgment against appellee despite the other findings. Appellee counters with the contention the jury’s answers to the special questions when read as a whole and construed in the light of all the evidence presented and the court’s instructions are not inconsistent and conflicting but are harmonious with the judgment entered. Appellee relies on familiar cases arising under our former procedural code wherein that rationale was applied in harmonizing a jury’s general verdict with its special findings of fact. He argues intent of the jury was clear that his negligence was not a proximate cause so as to defeat recovery. None of the cited cases, however, is applicable because the jury here rendered no general verdict. Indeed, the design of the special verdict procedure is to obtain answers to questions of fact with the knowledge of the jury limited as to whether its findings will favor one side or the other (see Skidmore v. Baltimore & O. R. Co., 167 F. 2d 54). We are not primarily concerned with the jury’s intention on the issue of ultimate recovery and have no occasion to resort to evidence and none has been supplied. The judgment must stand or fall on the jury’s answers considered in the light of the record. The doctrine of last clear chance has been frequently approved and applied in this state. Its elements were concisely stated in Goodman v. Kansas City, M. & S. Rld. Co., 137 Kan. 508, 21 P. 2d 322, as follows: “The doctrine of the last clear chance . . . may be said to be made up of the following elements: (1) Plaintiff, by his negligence, placed himself in a position of danger; (2) that his negligence had ceased; (3) that defendant seeing plaintiff in a position of danger, or by the exercise of due care should have seen him in such position, by exercising due care on his part had a clear chance to avoid injuring plaintiff; (4) that defendant failed to exercise such due care, and (5) as a result of such failure plaintiff was injured.” (p. 512.) The requirement that a plaintiff’s negligence must have ceased was explained in Letcher v. Derricott, 191 Kan. 596, 383 P. 2d 533, where we said: “The use of the phrase ‘that plaintiff’s negligence had ceased’ has caused some confusion. The phrase means, and perhaps the better term is, ‘that the plaintiff had, by her own negligence, placed herself in a position of peril from which she could not extricate herself.’ If the plaintiff could extricate herself from the danger, and did not do so, her negligence had not ceased. If the plaintiff could not extricate herself from the danger, her negligence had ceased.” (p. 600.) Recently we considered the doctrine in Sander v. Union Pacific Rld. Co., 205 Kan. 592, 470 P. 2d 748, a fatal train-automobile collision case. This too was a situation in which the trial court had rendered a judgment for plaintiffs upon special verdicts in the form of answers to special questions finding the defendant liable under the last clear chance doctrine. The record on appeal contained the evidence, review of which convinced this court plaintiffs’ decedents were, as a matter of law, contributorily negligent, such negligence continuing up until the very time of the collision. In reversing the judgment this court stated: “A fundamental principle of law is that the last clear chance doctrine is inapplicable where plaintiff’s contributory negligence continues and is not shown to have ceased. As sometimes stated, there can be no recovery under the doctrine where the negligence of the parties has remained concurrent. [Citations.]” (p. 598.) In Ross v. Chicago, R. I. & P. Rly. Co., 165 Kan. 279, 194 P. 2d 491, this court considered the negligence of one seeking to recover under the last clear chance theory and said: “The doctrine of last clear chance is not applicable so long as the plaintiff’s contributory negligence continues. Otherwise stated, there can be no recovery under the doctrine where the negligence of the parties has remained concurrent. [Citations.] The reason for this rule is readily apparent when the question is considered from the standpoint of proximate cause. Approaching the doctrine from that point of view as many, but not all, courts do [Citation], where a plaintiff’s negligence has ceased, it is regarded as remote and the defendant’s negligence which thereafter follows is regarded as the proximate cause of the accident. It is thus clear that if the plaintiff’s negligence has continued until the time of the accident and, without such negligence, the accident would not have occurred, recoveiy cannot be had.” (p. 286.) In the instant case, under the instructions and the form of the special questions submitted, the jury necessarily found that appellee’s negligence had not ceased. Instruction No. 11 defined proximate cause as that cause which in the natural and continuous sequence, unbroken by efficient intervening cause, produces that injury and without which the result would not have occurred. It further stated there may be more than one proximate cause. Instruction No. 13 included proximate causation as an element of the term contributory negligence. Special question No. 3 also embodied the element of proximate cause so that the jury’s affirmative answer thereto found plaintiff was negligent as alleged, “which [negligence] was a proximate cause of the collision”. The jury’s concern with the factor of proximate cause as well as the issue of ultimate recovery is reflected in its questions to the trial court during its deliberations. Appellant objected to the giving of any instruction on last clear chance on the ground there was no evidence in support of that doctrine. Appellant also objected, unsuccessfully, to the form of the special questions on the ground inconsistent answers were possible under them, albeit his challenge was directed toward a situation other than that which actually ensued. The problem now seems to stem from the form both of the instructions and of the special questions but apparently appellee made no objection to either. Instruction No. 9 authorized recovery under the doctrine of last clear chance even though the appellee’s negligence contributed to the collision. Under our decisions we are compelled to criticize and disapprove the use of the term contributory in the last phrase of the quoted instruction No. 9, “. . . despite any contributory negligence of the plaintiff”, as being an incorrect statement of law under the cited authorities. Except for this defect, the instruction gave directions to the jury appropriate for its determination by way of general verdict of the issue of ultimate recovery for appellee, but the instruction was not as appropriate for the jury’s use when confined to answering special questions. Special question No. 3 compounded the problem by embodying in the same question and answer both the appellee’s negligence and the element of proximate cause. No effort was made to separate the two, as might have been done, and the jury was required to answer all questions in the form submitted. Despite any intention on the part of the jury as to who should prevail, the judgment must be reversed because of the clear finding that appellee’s negligence was a proximate cause of the collision, and we so hold. A question remains as to further disposition of the case upon reversal, that is, should judgment be rendered for appellant or should new trial be ordered? We have no precedent of our own. The general principles respecting federal rule No. 49 (a), the counterpart of our K. S. A. 60-249 (a), appear to be, a jury’s findings on the essential issues submitted by way of special verdicts must be certain and definite, and must not be conflicting or inconsistent; in determining whether there is inconsistency in the 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 the answers in respect to the controlling facts are inconsistent, a judgment should not be rendered but a new trial should be ordered; inconsistency in the findings does not preclude 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 entered; if the jury finds the controlling facts, and there is no inconsistency or contradiction, the appropriate judgment should be entered (see 2B Barron & Holtzoff, Federal Practice and Procedure, [Rules Ed.] § 1057). We approve and adopt these principles. Further refinement of judicial duty may be found in the following language in A. & G. Stevedores v. Ellerman Lines, 369 U. S. 355, 7 L. ed. 2d 798, 82 S. Ct. 780, rehearing den. 369 U. S. 882, 8 L. ed. 2d 284, 82 S. Ct. 1137: “Where there is a view of the case that makes the jury’s answers to special interrogatories consistent, they must be resolved that way. For a search for one possible view of the case which will make the jury’s finding inconsistent results in a collision with the Seventh Amendment.” (p. 364.) The answers in controversy here are No’s. 3 and 5. No. 3 stated appellee was guilty of negligence which was a proximate cause of the collision. No. 5 related to the last clear chance doctrine, as that term was defined in instruction No. 9. As already discussed instruction No. 9, albeit improperly, authorized recovery even though appellee’s negligence contributed to the collision. So considered, the answers to questions No. 3 and 5 are not inconsistent. The inescapable fact is that appellee remains convicted of negligence which was a proximate cause of the collision. Hence recovery is barred even though appellant was also negligent and judgment must be rendered for appellant. The judgment is reversed with directions to enter judgment for appellant. APPROVED BY THE COURT.	[ -16, -20, -12, -114, 11, 96, 42, 88, 81, -105, 38, 83, 47, -49, 5, 121, -2, -5, -44, 106, -43, -73, 7, -37, -110, -13, 115, -60, -77, 73, 118, -9, 76, 48, -54, -43, -122, 75, -59, 86, -122, 30, 8, 112, -103, -94, -76, 122, 82, 7, 113, 31, -61, 43, 24, -50, 105, 40, 75, -67, -47, -79, -51, -123, -1, 0, -93, 4, -98, 35, 90, 60, -104, 57, 0, -20, 114, -90, -106, -44, 107, -101, -128, 102, 103, 33, 53, -51, -3, -104, 14, 127, 15, -90, 30, 72, 41, 13, -105, -33, 127, 20, 6, 122, -3, 17, 31, 100, 3, -49, -80, -111, -17, 54, 30, 24, -5, -123, 50, 117, -52, -16, 95, -59, 18, -109, -65, -98 ]
"The opinion of the court was delivered by Valentine, J.: The only question involved in this case is with reference to the proper construction of a contract of insurance, entered into between Frederick Felix and the Grand Lodge of the Ancient Order of United Workmen of the State of Kansas. It appears from the record, that some years prior to 1866, Frederick Felix was married to Caroline-, and by her had two children, William Frederick and August. Afterward, and in 1866, Caroline obtained a divorce from Frederick. On January 27, 1868, Frederick was married to Lena Kester, and by her had one child, born January 13, 1869, and named William. In September, 1869, Lena obtained a divorce from Frederick, and, by a settlement between the parties, Lena obtained from Frederick, for herself and child, the sum of $2,000. In 1872 Frederick again married Caroline,' and they lived together as husband and wife until he died in 1882. Prior to his death, and on August 3, 1881, the Grand Lodge of the Ancient Order of United Workmen of the State of Kansas issued a certificate of insurance to Frederick, providing, among other things, that Frederick should “participate in the beneficiary fund of the order to the amounff.of $2,000, which sum shall, at his death, be paid to his wife and children by the said Grand Lodge.” On May 12, 1882, Frederick died, leaving the said Caroline, Lena, William Frederick, August, and William surviving him. The said Gra id Lodge of the Ancient Order of United Workmen is now ready and willing to pay the said sum of $2,000 to the person or persons who are entitled to receive the same; and the only question now to be determined is who that person or those persons are. The court below decided that Caroline was entitled to receive one-half of such fund, and that William Frederick, August, and William were each entitled to receive one-sixth thereof. The said William, being dissatisfied with this decision, now brings the case to this court. He claims that, instead of being entitled to receive only one-sixth of said fund, as the court below decided, he is entitled to receive one-fourth thereof. We think he is correct. This fund is no part of the assets of the estate of Frederick. It does not go to his administrator or heirs, and is not liable for his debts; but it must be paid out by the said Grand Lodge solely in accordance with the terms of the original contract entered into between Frederick and the said Grand Lodge. The statutes of Kansas with reference to descents and distribution have no possible application to this case; for such statutes apply only to the estates of deceased persons. As before stated, this fund is no part of the estate of the said Frederick Felix. How, then, shall this fund be paid out or distributed ? The said contract provides that it shall “be paid to his [Frederick’s] wife and children;” and it is admitted by all the parties that his wife and children were, at the time the contract was made, and are now, the said Caroline, William Frederick, August, and William. And as the contract provides that this fund shall “be paid to his wife and children,” without designating in what proportions the same shall be paid, we think the same should be paid to his wife and children equally. Each should receive an equal share; or, in other words, each should receive one-fourth of such fund. This is the natural construction of the language of the contract. Suppose that the contract had provided that the fund should be paid to his brother and sisters, there being one brother and three sisters; or to his brothers and sister, there being three‘brothers and one sister; or to his son and daughters, there being one son and three daughters; or to his sons and daughter, there being three sons and one daughter: would one-half of the fund go to the single person named in any one of these suppositions, and the other half, after being divided into three parts, or into sixths of the whole, go to the other three persons? Counsel for both parties say not. Counsel for William says the fund should be distributed as we have indicated; while counsel for Caroline, William Frederick, and August, claims that no portion of the fund in this particular case should be paid to William. And this he claims for the reason that William was never any part of the family of Frederick, but always lived with his mother, Lena, and was taken care of by her; and also because of the settlement made between Frederick and Lena at the time divorce was granted to Lena. Now we do not think that these matters can enter into the consideration of this case at all. The contract by which this fund was created was entered into solely between Frederick and the Grand Lodge of the Ancient Order of United Workmen of the State of Kansas. It cannot be supposed that this grand lodge had any knowledge of the private affairs or the previous domestic relations existing between Frederick and Lena, or of the settlement which had previously been made between them, and certainly nothing of this kind was embodied in the contract entered into between Frederick and this grand lodge. And it must be supposed that this grand lodge understood the language which it used in the contract, and that it intended to make just the kind of contract which it did in fact make, and that it intended to bind itself to perform just what it agreed to perform, and did not intend to be bound by any secret arrangements, or settlements, or understandings previously entered into or at any time existing between Frederick and Lena. We think this grand lodge is simply bound to pay in accordance with the terms of its contract; andjts contract says that it shall pay the fund to the “ wife and children ” of Frederick, which, according to all well-settled rules of construction, means the wife and children equally. (Hamilton v. Pitcher, 53 Mo. 334, 336.) The judgment of the court below will be reversed, and the cause remanded for further proceedings in accordance with this opinion. Horton, C. J., concurring. Brewer, J., dissenting. .	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The opinion of the court was delivered by Horton, C. J.: This was an action brought by Eeynolds against the railroad company, to recover damages for injuries to certain cattle belonging to him. The bill of particulars alleged, among other things, that the animals injured, casually and without the fault of the owner, strayed in and upon the track and grounds occupied by the railroad company; that the company, by its agents and servants, so carelessly and negligently ran and managed its engine and cars that the same ran against and over the cattle, rendering them worthless. The jury impaneled in the case found specially that the cattle were run over at a public crossing, and returned a verdict against the company for $125. Judgment was rendered thereon. The case seems to have been tried in the district court on the part of Reynolds upon the theory that the steam whistle attached to the engine was not sounded as required by the provisions of the statute; that no alarm was given to drive or frighten the cattle away from the track; that the employés in charge of the engine and train saw the cattle a long distance from the crossing, grazing in close proximity to the track, and were guilty of negligence in not trying to avoid them at the crossing, and in not attempting to prevent their injury. On the part of the railroad company, evidence was offered tending to show that the whistle was sounded as prescribed by the statute; that the cattle came suddenly upon the defendant’s road, and jumped in front of the engine so close thereto that by the exercise of even great care on the part of the engineer and the other employés of the company, they could not prevent the train from running over them; and that they were injured by unavoidable accident. Various questions are presented to us for determination; but while we shall refer to all of them, we shall do so as briefly as possible, as most of them are settled by prior adjudications of this court. I. The first complaint is, that as the bill of particulars did not allege any non-compliance with the provisions of § 60, ch. 23, Comp. Laws of 1879, the court erred in permitting evidence to be introduced to prove the whistle attached to the engine was not sounded as required by the statute. This is not material, because the findings of the jury show that the evidence did not convince them that the whistle was hot sounded. (See, however, Railroad Co. v. Phillippi, 20 Kas. 9.) II. The railroad company requested the court to direct the jury to find upon certain particular questions of fact. The court refused to submit those asked for. All of these but one (to which we will refer hereafter) were inquiries as to the exercise of the care taken by Reynolds to prevent his cattle from being injured, the purpose of the inquiries being to establish by the special findings, if possible, that Reynolds was guilty of contributory negligence in turning the cattle out to graze, and in permitting them to run at large. While the particular questions asked for were refused, yet others, embracing the conduct of Reynolds concerning his care of the cattle, were submitted to the jury. These were as follows : “Was it at a public crossing over the defendant’s track and right-of-way where the accident occurred and the stock were injured? A. Yes. “Did the plaintiff, at the date of the injury, reside in close proximity to the railroad track and in full view thereof, and had he resided there for several years and knew how the trains were run and operated thereon? A. Yes. “Was the plaintiff, at the time of the injury, and had he been for the month prior thereto, in the habit of turning his cattle out into the highway which crossed the railroad track, leaving them at liberty to stray where they saw fit? A. Yes. “Did not the defendant’s train of cars, at the time of the injury, and for several months prior to the injury, pass in plain view of the plaintiff’s house, passing the crossing? — and did not the plaintiff with the knowledge thereof, on the day of the accident turn his cattle out into the public highway, leaving them at liberty to stray on the defendant’s track and on said crossing ? A. Yes. “At the time the plaintiff turned his cattle out, on the morning of the accident, was there anything to prevent them from wandering or straying upon the defendant’s track and on the said public crossing where trains of cars were passing and repassing? A. No.” Reynolds occupied forty acres of land, and his house was seventy rods on the north side of the railroad track, and about half a mile east of the public crossing where the cattle were run over. This highway was forty feet wide. A hedge was on the south side of his land, and the road was fenced on both sides of the highway. The catte were kept up nights, but mornings were turned loose and permitted to run on the commons or vacant prairie. Upon the special findings of the jury and the facts as proved, we do not think there was anything tending to establish contributory negligence on the part of Reynolds. (Railway Company v. Wilson, 28 Kas. 637.) III. One of the questions which the court refused to submit, was the following: “If the jury should find that the defendant was negligent, state fully in what such negligence consisted.” Our first impression was that this question was pertinent, and should have been submitted. A more careful examination, however, has convinced us that while the court in its discretion might have admitted this question to the jury, leaving the jury to state the particular facts constituting the negligence, yet it was not error in refusing so to do. Under § 286 of the code, the jury are not required to do anything except to render a general verdict, and in addition thereto to make findings upon such particular questions of fact as are stated in writing by one or both of the parties, and as requested by such party or parties. (Foster v. Turner,. ante, p. 58.) Where in the nature of things a jury can point out the negligence upon which their verdict is based, the court, if requested, may in its discretion very properly direct the jury to fix the negligence, and the jury should do so. If it is impossible to do this, upon the evidence, the failure to fix the negligence will not defeat a recovery; but as the court, under the statute, is not bound to submit such general questions of fact to the jury as will require them to find a special verdict, or compel them to state at length or in detail new facts not particularly mentioned in the general question, no error is committed when the court refuses to submit'such a general question. (Foster v. Turner, supra.) IY. The jury with their verdict returned answers to questions of fact submitted, and the railroad company objected to the action of the trial court in discharging them without requiring them to make their answers more specific and certain. Most of the answers were signed, “We think not,” or “Think not.” “We think not,” was equivalent to “No.” The answers “Don’t know” to the questions to which they were affixed, established that the evidence introduced did not show that the engineer or fireman was incompetent to discharge the duties of their employment; and also the evidence did not prove that the whistle to the engine was not sounded. The answer that seems most indefinite was the finding of the jury that the engine was from ten to fifty feet distant from the stock when they first came upon the track. We do not perceive, however, that the court, under the circumstances of the case, committed any error in refusing to compel the jury to make this finding more definite. The evidence was somewhat conflicting, and it would be difficult for any one to state, from the evidence, with precision, the exact distance the engine was from the cattle when they reached the track. Y. Finally, the counsel for the railroad company contend that there was no evidence introduced tending to prove negligence against the company. They say that the verdict and findings of the jury are contrary to and against the evidence. The evidence tending to establish negligence on the part of the railroad company is not very clear or positive, but we think there was sufficient presented to support the verdict of the jury. It is apparent that the whistle on the engine was sounded before. reaching the crossing, as required by the statute; but there was some evidence offered which the jury might properly regard as tending to prove that the employes in charge of the engine, after having seen the cattle near the track, were not sufficiently attentive in the discharge of their duties. The engineer testified that it was the duty of the fireman, as well as his own, to look out for anything on the track; that he first saw the cattle half a mile away, grazing along the track, and about forty feet away from the track; that they were not approaching the track when he whistled, and he did not whistle again because they did not move toward the track at the time; that when he blew the. whistle, he knew it was likely the cattle would move, and when they did not move at that time, he thought he would try to get by without alarming them; that the cattle moved toward the track when he was not looking at them; that they were out of his sight until he got within a little distance from them, but the fireman could have seen them all the time if he had been looking, as his place was on the left-hand side of the cab and on the side where the cattle were, while his place was on the opposite side. If the fireman had kept a proper lookout after the engineer ■blew the whistle, he ought to have seen that the cattle were moving toward the crossing, and if he had given this information to the engineer, as it was his duty to do, the engineer would have known that the cattle were approaching the track, and would not have tried to pass them, as he was attempting to do, without alarming them. Upon seeing the cattle forty or fifty feet from the track, the employés of the railroad company in charge of the engine and train were not bound to stop the train; but they ought, for the safety of the passengers and others upon the train, as well as to prevent the infliction of unnecessary damage to the cattle, to have used ordinary prudence to ascertain whether the cattle were likely to attempt to cross the track upon the public crossing in front of the engine; and if by keeping an outlook they could have ascertained this, it should have been done, and then they should have used ordinary care and diligence to prevent the cattle, if they were about to cross the track, from being run over. The jury were not satisfied that the cattle came suddenly on the track just before being struck. (Railway Co. v. Wilson, supra.) 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 Valentine, J.: This was an action commenced before a justice of the peace by E. P. Caywood and E. W. Cay- wood, partners doing business under the firm-name of Cay-wood & Go., against George Timmons, to recover the sum of $151.50, alleged to be due from the defendant to the plaintiffs. After judgment in the justice’s court, the case was appealed to the district court, where a trial was had before the court and a jury, which resulted in a judgment in favor of the defendant and against the plaintiffs for $50 and costs. The plaintiffs bring the case to this court for review. The record brought to this court shows, among other things, the following: “The undisputed evidence introduced in said action proved that said plaintiffs were grain merchants doing business in Clifton, Clay county, Kansas, and that said defendant was a farmer, as alleged in his bill of particulars; and that he had a number of. wheat stacks or ricks on his farm, as alleged in his said bill of particulars. “The testimony on behalf of both plaintiffs and defendant also showed that on the 14th or 15th day of September, plaintiffs had a conversation at said farm concerning said wheat, but the evidence for plaintiffs and defendant conflicted as to the details of said conversation. “Plaintiffs’ evidence tended to prove, and if uncontradicted would have proved, that he examined all of said wheat except one yard, there being three, and that they were in good sound condition, and that the wheat therein, if then threshed out, would have been worth $1.05 per bushel; and that he did examine and go to all of said stacks except those at one yard, and could have seen all the rest of said wheat, but defendant represented all of said wheat to be as good as the wheat examined by said plaintiff, and that it was thereupon agreed between plaintiffs.and defendant that defendant should thresh out all of the wheat on said farm and deliver the same, except 75 or 100 bushels, to said plaintiffs at their place of business in said Clifton, on or before the 20 th day of October, 1881, and that said plaintiffs should take whatever said stacks of wheat might produce, less 75 or 100 bushels, and pay $1.05 per bushel for the same, if the same should be delivered at said Clifton on or before October 20, 1881. “The evidence for defendant substantiated the evidence for plaintiffs as to the price per bushel, and as to the 75 or 100 bushels to be retained by^ defendant, but tended to show that plaintiffs examined all the wheat at the time except the most distant stack yard, and that there was no definite time agreed upon for the wheat to be delivered, but that it was to be delivered after he should finish certain specified work, namely, seeding, setting water tank, and setting up a pair of scales. “The evidence for both plaintiffs and defendant showed that plaintiffs at that [time] paid to defendant $50 in cash on the contract between them,-and afterward, and on the 3d day of October, 188 — , also delivered and sold a pair of scales to defendant at and for the agreed price of $100, to be credited on said contract. “Defendant’s evidence was to the effect that nothing was said or agreed upon as to the condition the wheat should be in at the time of delivery, nor as to whose risk the wheat should be at uutil threshed and delivered. “It was established by both defendant and plaintiffs that so much of the wheat as was to be delivered to plaintiffs was to be weighed at Vining, and paid for according to the weights there. “It was established by the evidence that said stacks or ricks were threshed out, [and that] they produced 800 bushels, and that the same were not threshed out until after October 20, 1881, and that when defendant offered and attempted to deliver said wheat that it was then found to have been damaged by rain. That said defendant did not haul any of said wheat to Clifton and tender the same to the plaintiffs until after October 20, 1881, was established by undisputed evidence. “It was established by uncontradicted testimony that defendant had never repaid plaintiffs the $50 cash received by [him], nor the $100, [but had paid the $1.50 for coal received by him] nor any part of either of said sums, and the plaintiffs never received any of said wheat from said defendant, and refused to receive the same. “E. P. Caywood testified as follows: ‘I finally dropped the matter of delivery before seeding. I-kept hurrying Timmons up about hauling the wheat in. Wheat was not worth over ninety cents at the time the offer of delivery was made by defendant.’ “And the above and foregoing was all the evidence offered or given by either party on the trial of said action.” After the evidence was all introduced, the plaintiffs asked the court below to give four certain instructions to the jury, which raised the question, among others, whether the original contract between the parties constituted a completed sale of the wheat, or constituted only a contract to sell such wheat; but the court refused to give these instructions, and the plaintiffs duly excepted; and the court then gave full instructions to the jury, which were given upon the theory that the original contract between the parties constituted a fully-completed sale of the wheat, that the property in the wheat immediately passed from the defendant to the plaintiffs, and that the plaintiffs took all the risk of loss or damage which might result from rains or storms, or other casualties. The court gave among others the following instruction, to wit: “4. The plaintiffs refused to receive the wheat for two reasons, as they now claim: First, that it was not delivered within the time limited by the terms of the contract; and second, that it was damaged. On this question yon are instructed that if the contract was that the wheat was to be delivered on or before the 20th day of October, the plaintiffs had a right to refuse to receive it; as it is conceded the wheat was not offered to be delivered until after the 20th. “If you find, however, that the contract in regard to the time of the delivery was as claimed by the defendant, Timmons, and that the wheat was offered to be delivered within the time stipulated, then the plaintiffs had no right to refuse to accept it, even though it was damaged, unless the defendant had been guilty of fraud in the sale to plaintiffs. “If the plaintiffs examined the wheat in the stacks, and bought the wheat on their own judgment, then they had no right to refuse to receive the wheat because it might not have been as good as they had thought, or because they might have used poor judgment in regard to the quality of the wheat at the time of the purchase. The plaintiffs would only be justified in refusing the wheat on the ground that it was damaged, in case it has been shown that the defendant made willfully false representations in regard to its quality — that is, representations which he knew to be false — which were relied upon by the plaintiffs at the time of the purchase; or that the defendant fraudulently concealed the quality of the wheat for the purpose and intent of deceiving, plaintiffs, and did in fact so deceive plaintiffs. “In short, if the wheat was offered to be delivered within the time stipulated, it was the duty of the plaintiffs to have received it and to have paid defendant the agreed price of $1.05 per bushel, unless the defendant was guilty of fraudulent representations or fraudulent concealment at the time of the purchase, by which plaintiffs were misled and deceived in regard to the quality of the wheat. If plaintiffs bought the wheat in the stack, and the wheat was to be threshed and delivered within a specified time, then plaintiffs took their chances in regard to the action of the elements upon the wheat between the time of purchase and the time agreed upon for its threshing and delivering; and if it was damaged after the time of purchase, and before the time fixed for threshing and delivering, by rain, then the plaintiffs could not for this reason refuse to accept the wheat, as this is one of the chances which they take when making such a purchase.” We think the court below erred in its instructions to the jury. It erred in instructing them in substance, and as a matter of law, that the original contract between the parties was a completed sale, and that the plaintiffs took all risk with regard to loss or damage resulting from the action of the elements; and in instructing them in substance to find for the defendant. Almost every fact covered by the instruction above quoted was agreed upon, or was understood in the same way by the parties, except the ownership of the wheat from and after the time when the original contract was made and the time when the wheat was to be delivered. There was really no claim made by the plaintiffs in their pleadings or evidence, or elsewhere, that the defendant ever committed any fraud or was guilty of any misstatements or misrepresentations. The plaintiffs admitted that the wheat was in good condition at the time the original contract was made, and in the very condition in which the defendant at that time represented it to be, and that all the statements made by the defendant at that time concerning the wheat were strictly true and correct. Hence the instruction substantially was, that after the original contract was made between the parties the wheat belonged to the plaintiffs, and not to the defendant, and that the plaintiffs took all the risks of loss or injury that might ensue with regard to the wheat. We think this instruction to this extent was erroneous. If under the pleadings and the evidence it cannot be said as a matter of law that the defendant continued to be the owner of the wheat, then we think it must be held that the question as to whether the title to the wheat passed from the defendant to the plaintiffs at the time of the making of the original contract was one of fact for the jury to consider, and was not a question of law for the court to decide. Among other things tending to show that the title to the wheat continued to be in the defendant, and that it was not the intention of the parties that the wheat should become the property of the plaintiffs until threshed, weighed and delivered, are the following: The wheat was on the defendant’s premises, and in his possession; and it was to remain in his possession until threshed, weighed and delivered, at some considerable period of time afterward; it was not expected by the parties that the plaintiffs should take any precautions to prevent injury to the wheat from rains, storms, or other possible dangers, but the wheat was to remain wholly within the care and custody of the defendant; the defendant was to thresh it; was to transport it to Yining; was to have it there weighed; and was then to transport it to Clifton, and there deliver it to the plaintiffs. But the defendant was not to deliver all of it, or all concerning which the contract was made. The plaintiff did not purchase the whole of it: a portion of the same was to remain the property of the defendant; and this portion was an undivided portion of the whole of it. No separation was made or could be made until after the wheat was threshed. It appears that after the wheat was threshed and weighed, it was found that there were in all about 800 bushels of the same; and the defendant was to retain from 75 to 100 bushels thereof. Also, at the time the contract was made the wheat was in the stack; and there is no claim made that the straw or the chaff, or any part of either, was ever to become the property of the plaintiffs, or was ever to be placed in their care or custody, or at their risk. Both the straw and the chaff were to remain the property of the defendant, and in his possession, and under his control. Under all these circumstances, we do not think that it can be held as a matter of law that any portion of the wheat became the property of the plaintiffs at the time when the original contract was made; and unless it did, the instruction of the court above quoted was certainly erroneous. There are several other questions raised in this case, but, with the view that we have taken of the question already discussed, it is unnecessary to discuss any of these other questions. It will be seen, however, from the evidence, that the jury erred in finding virtually that the defendant had been damaged to the extent of $200, and in giving a verdict in favor of the defendant and against the plaintiffs for $50— the excess'over the $150 which the plaintiffs had previously paid to the defendant. The authorities upon the main question discussed in this case will be found cited in the briefs of counsel. The judgment of the court below will be reversed, and the cause remanded for a new trial. All the Justices concurring.	[ -80, 102, -3, 29, 26, -32, 42, -40, 66, -95, -28, 83, -23, 83, 17, 121, -30, 77, 85, 106, -58, -73, 3, -32, -109, -13, -61, -51, -71, 73, -92, -41, 77, 32, 10, -107, -26, -64, -63, 28, -50, 12, -87, -20, -35, 32, -72, 57, 118, 75, 117, 46, -5, 44, 93, -61, 105, 44, -23, 41, 81, -15, -96, -57, 109, 22, 19, 34, -100, 7, -54, 110, -112, 49, 1, -24, 90, -92, -122, -44, 7, -103, 9, 118, 102, 49, 5, -17, -88, -120, 39, -10, -115, -25, -112, 8, 75, 4, -66, -103, 125, 80, -122, 126, -31, 13, -99, 124, 3, -50, -68, -109, -113, 48, -102, -97, -21, -81, 50, 97, -51, -94, 89, 69, 112, -101, -113, -76 ]
The opinion of the court was delivered by Valentine, J.: This was an action brought by William M. Jackson against the Kansas City, Lawrence & Southern Kansas railroad company, to recover damages for injuries received by him while in the employment of the railroad company as a conductor of one of its construction trains. The plaintiff, alleges in his petition below that these injuries were caused by the negligence of the railroad company. The case was tried before the court and a jury, and after all the plaintiff’s evidence was introduced, the defendant demurred thereto upon the ground that it did not prove any cause of action in favor of the plaintiff and against the railroad company. The demurrer was sustained by the court. The plaintiff then moved the court for a new trial upon various grounds, which motion was overruled. Afterward the plaintiff brought or attempted to bring the case to this court for review. Now assuming that the plaintiff has got his case into this court, and assuming that the plaintiff exercised proper care and diligence on his part to avoid the injuries of which he now complains, still we do not think that he proved any negligence on the part of the railroad company; and therefore, and for this reason, if for no other, we think the court below did not err in its various rulings against the plaintiff. We think it is unnecessary to comment upon the evidence or upon the facts of the case to any great extent; but perhaps it would not be out of place to state some of the principal facts. The plaintiff, as before stated, was the conductor of one of the construction trains operated on the defendant’s railroad, and he received the injuries of which he now complains while switching the engine and ears for. the purpose of making up the train for a particular occasion. Just prior to the time when said injuries were received, the engine was on the main track of the railroad, without any cars attached thereto, and was being moved backward toward the plaintiff*, by the person in charge thereof, at the rate of from three to five miles an hour, and the plaintiff, seeing it coming, moved a switch track and locked it, and when the engine reached the point where he stood, he caught hold of the hand-holds and placed his right foot upon the step of the engine and was lifting his left foot from the ground to place it on the step of the tender, when the engine was reversed, and in consequence of such reversal his foot slipped from the step of the engine and fell .upon the rail of the railroad track, and one of the drive-wheels of the engine passed over it and crushed it so badly that a part of the same had to be amputated. It is claimed that the step of the engine was defective, in not having sufficient guards at the sides, but it would seem that the plaintiff had full knowledge with reference to the condition of the step, and as full knowledge as any other person; hence, he cannot claim negligence on the part of the railroad company with respect to the step; for if the step was not fit for use, he knew it, and was guilty of contributory negligence in attempting to use the same after having full knowledge of its supposed defective condition. (L. S. & M. S. Rly. Co. v. McCormick, 74 Ind. 440; same case, 5 Am. & Eng. Rld. Cases, 474; Pittsburg &c. Rld. Co. v. Sentmeyer, 92 Pa. St. 276; same case, 5 Am. & Eng. Rld. Cases, 508; Umback v. L. S. & M. S. Rly. Co., 83 Ind. 191; same case, 8 Am. & Eng. Rld. Cases, 98; H. & T. C. Rly. Co. v. Meyers, 55 Tex. 110; same case, 8 Am. & Eng. Rld. Cases, 114; H. & T. C. Rly. Co. v. Fowler, 56 Tex. 452; same case, 8 Am. & Eng. Rld. Cases, 504; DeForest v. Jewett, 88 N. Y. 264; same case, 8 Am. & Eng. Rld. Cases, 495; Devitt v. Pac. Rld. Co., 50 Mo. 302; Dillon v. U. P. Rld. Co., 3 Dillon, 320, 324; Richardson v. Cooper, 88 Ill. 271; M. R. & L. E. Rld. Co. v. Barber, 5 Ohio St. 541, 559, 560; Coates v. Burlington &c. Rld. Co., decided by supreme court of Iowa, December 13, 1883, 17 N. W. Rep. 760; 2 Thompson on Negligence, 1008; note to case of Ballou v. Chicago &c. Rly. Co., 5 Am. & Eng. Rld. Cases, 480, 506; same case, 54 Wis. 257.) The step, however, was not really defective, but was simply of a different pattern from those often used on railroad engines; and the plaintiff admits in his brief that the evidence does not show such a defective or unsafe condition of the step as to preclude its use. And he also admits that, except for the reversal of the engine, he would not have fallen or been injured. Besides, there was no necessity for the plaintiff to use the step at the time he did; and we certainly think that no negligence can be imputed to the railroad company on account of the use of said step by the plaintiff at the time he used it. Probably neither the plaintiff nor the railroad company was guilty of negligence in using said step. This brings us to the question whether any negligence can be imputed to the railroad company because of the reversal of said engine. Now no negligence was shown with respect to such reversal. The evidence shows that engines are often reversed in switching cars and in making up trains; and there was no evidence introduced tending to show that the engine in the present case was not reversed for a good and sufficient reason; and there was no evidence introduced tending to show that the person in' charge of the engine had any knowledge that the plaintiff was on the engine, or attempting to get upon the same, at the time the engine was reversed. We suppose it will be admitted that the reversal of an engine is not negligence per se, and that negligence is never presumed without proof, but in all cases it must be proved. We refer to the following cases, as having some application to this case: Mo. Pac. Rly. Co. v. Haley, 25 Kas. 35, 57, 62, 63; Williams v. A. T. & S. F. Rld. Co., 22 id. 117; McQueen v. C. B. U. P. Rld. Co., 30 id. 689, 692, and cases there cited. The judgment of the court below will be affirmed. All the Justices concurring.	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The opinion of the court was delivered by Horton, C. J.: The writer is of the opinion that if the district court was convinced, upon the hearing before it, that the return of the officer was not in accordance with the actual facts therein set forth, or that the officer had in any way abused the process, the court had the power to refuse to confirm the sale. The other members and the majority of this court, however, are of the opinion that upon the record, the purchaser at the sale had rights which it was the duty of the court to protect; that as the return of the officer shows after diligent search he was unable to find any goods or chattels of any kind whereon to levy the execution, and as all the proceedings of the sale seem to have been in conformity with the statute, the motion to set aside the sale should have been overruled and the sale confirmed. (Challiss v. Wise, 2 Kas., 193; White-Crow v. White-Wing, 3 id. 276; Treptow v. Buse, 10 id. 170; Dewey v. Linscott, 20 id. 684; New England Mortgage Co. v. Smith, 25 id. 622.) We all agree that it is not absolutely necessary for an officer having an execution to make a personal demand of the judgment debtor for the amount thereof, or notify him he holds an execution against him, before levying upon his real property; that he is only required to exercise reasonable and ordinary diligence to discover whether goods and chattels can be found belonging to the debtor, before levying upon real estate; and he may, under some circumstances, have sufficient knowledge at the issuance of the execution that the debtor has no goods or chattels subject to levy, so that search is wholly useless. The order of the district court will be reversed, and the case remanded for further proceedings. Brewer, J., concurring.	[ -79, 126, -40, -68, 58, 96, 58, -72, -47, -95, 39, 115, 45, -62, 16, 105, -10, 109, 117, 105, -58, -77, 118, -29, 86, -45, -47, -35, 49, 76, -26, -34, 76, 32, -62, -107, 102, -56, -41, -48, -50, -121, 24, 69, -7, 0, 48, 59, 88, 79, 65, -34, -29, 30, 25, -53, -23, 40, 107, -79, -48, 120, -71, -115, 95, 6, -77, 39, -36, 7, -8, -18, -112, 57, 1, -24, 123, -90, -122, 84, 73, 11, 40, 98, 107, -125, 77, -19, -16, -104, 47, -2, -121, -90, 16, 88, 42, 96, -106, -99, 125, 2, 38, -4, -30, -115, 93, 100, 31, -113, -106, -95, -117, 116, -102, 74, -34, 3, -79, 80, -57, -96, 93, 99, 83, -101, -114, -36 ]
The opinion of the court was delivered by Valentine, J.: This was a motion to retax costs; and the facts, as shown by the record, are as follows: The defendant, the railroad company, instituted proceedings to condemn a right-of-way across the plaintiff’s land, situated in Bourbon county. The plaintiff, Mylius, took an appeal from the award of the commissioners'to the district court of Bourbon county. At the next term of the district court the railroad company asked for a. change of venue to some other district, because the then judge of the district court had previously been an attorney in the case. The change of venue was thereupon ordered, and the cause went to Miami county for trial. Both parties had subpenas issued to the sheriff of Bourbon county, who served the same upon witnesses in that county. The witnesses responded to these sub penas, and attended the district court of Miami county, and were sworn and examined as witnesses. The jury found for plaintiff in the sum of $350, and plaintiff had judgment for costs. The clerk taxed up and allowed these witnesses mileage fees, from their places of residence in Bourbon county to Paola, Miami county, and return, and also the fees of the sheriff of Bourbon county for serving the plaintiff’s subpenas. The amount so taxed for mileage for plaintiff’s witnesses was $100.20; for sheriff’s fees, $6.40; total, $106.60. The witnesses actually traveled the distance by each claimed. None of them were served with subpenas except as above stated, in Bourbon county. The distance traveled by each of the plaintiff’s witnesses within Miami county was thirty miles. The defendant filed a motion to retax these costs, claiming them to be illegal. The court sustained the motion, and disallowed all fees for mileage for the plaintiff’s witnesses, and the fees of the sheriff of Bourbon county for serving subpenas in that county. The plaintiff excepted, and brings the case here for review on error; and he claims that there are really three disputed questions in the case: “1. Is a witness residing in one county in this state, who attends court in another county, entitled to mileage for the whole distance actually traveled in attending court ? “ 2. If not for the whole distance, is he then entitled to mileage for the distance actually traveled within the county where he attends court, although not served with a subpena within that county? “3. Is a sheriff entitled to receive fees for serving within his county a subpena issued from the district court of another county?” The foregoing is hardly an accurate statement of the questions involved in this case. The questions are not whether a witness who resides in one county and attends the district court in another county, is entitled to milage fees, or not; and whether a sheriff who has served within his own county a subpena issued from the district court of another county, is entitled to service fees, or not; but the question is, whether the party who has caused such services to be rendered by the sheriff and witness is entitled to recover a judgment against the other party for such services. It may be that, when a party causes a subpena to be issued from the district court of one county into another county, and causes the sheriff of this other county to serve the same, and thereby causes a witness to leave his own county to attend the district court of the first-mentioned county, such party is liable for all the fees of the sheriff and witness, and that the sheriff and witness are entitled to recover the same from him; but the question in this case is whether such party is then entitled to recover the same from the other party. No question has been raised in this case with reference, to the fees of the witnesses for their per diem services in attending the district court in Miami county. ■ We suppose they were allowed by the district court; but the question here raised is with reference to the fees of the sheriff of Bourbon county, and the mileage fees of the witnesses from that county. We shall consider all the questions raised in this case together. There is no provision in the statutes requiring a witness to attend, court except upon a subpena; and no provision authorizing the issuance of a subpena • from the district court of one county to the sheriff of another county. • This is probably not an oversight of the legislature, for the legislature has provided that summonses, attachments, executions, etc., may be issued from the district court of one county to be served by the sheriff of another county. See also the following affirmative statutes. Section 328 of the civil code reads as follows: “ Sec. 328. A witness shall not be obliged to attend for examination on the trial of a civil action except in the county of his residence, nor to attend to give his deposition out of the county where he resides, or where he may be when the subpena is served upon him.” Section 346 of the civil code provides, among other things, as follows: ‘ Sec_ 346. The deposition of any witness may be used only in he following cáses: First, When thé witness does not reside in the county where the action or proceeding is pending, or is sent for trial by change of venue, or is absent therefrom.” Section 15 of the act relating to fees and salaries provides, among other things, as follows : “Sec. 15. Witnesses shall receive the following fees: . . Eor each mile necessarily and actually traveled, in going to and returning from the place of attendance, ten cents.” It will be seen from the foregoing that no witness is required to attend the district court unless he has been regularly subpenaed ; and no subpena can be regularly issued or served upon him for such a purpose except a subpena from his own county, and he is not required to attend the district court or to give his evidence except in his own county; and he is not entitled to receive mileage fees except for each mile “necessarily:” traveled in. going to and returning from the place of attendance; and there is no statute that contemplates an attendance upon the court beyond his own county, and no statute that contemplates that it will be necessary for him to travel outside of his own county in going to and returning from the place of attendance; and under the statutes he cannot “necessarily” travel a single' mile for the purpose of attending the court, except in traveling to some place within his own county. Hence we think that the decision of the court below is correct. But if it is not correct, then a witness may travel four hundred miles each way — eight hundred miles in all — as well as thirty miles, and do this without a subpena, and receive full fees for the whole eight hundred miles traveled, notwithstanding the fact that it was not necessary under the law for him to travel a single mile outside of his own county. We do not think that the statutes authorize any such thing. And without authority, of course no fee can be allowed. We think that both the service of the subpena by the sheriff of Bourbon county and the traveling done by the witnesses were unnecessary, and unauthorized by law; and the plaintiff cannot recover costs because thereof. As a general rule, a party cannot recover for costs which are unnecessarily made. (Clark v. White, 17 Kas. 180, 182.) The judgment of the court below retaxing the costs will be affirmed. All the Justices concurring.	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The opinion of the court was delivered by Valentine, J.: On October 26, 1881, a judgment on a note and mortgage was rendered in the district court of Sumner county, Kansas, in favor of the Keene Five-Cent Savings Bank and against James Marsh and Catherine L. Marsh, for the sum of $1,198, with interest and costs, but a stay of execution was ordered on such judgment for the period of six months. Just prior to the termination of the stay of execution, the attorney for the Keene Five-Cent Savings Bank filed a written precipe with the clerk of the district court, ordering him to issue an execution'on such judgment; and immediately after the time when such stay of execution had elapsed, the attorney gave verbal orders to the clerk to issue such execution. Immediately afterward the attorney saw the sheriff of the county and told the sheriff that an execution would soon be issued on such judgment, and requested the sheriff to give him, the attorney, notice of the time fixed by the sheriff for the sale of the property, and the sheriff promised that he would do so. The attorney made this request of the sheriff and obtained this promise, for the reason "that he, the attorney, did not reside in Sumner county, but resided at Wichita, in Sedgwick county. Immediately afterward, and on May 6, 1882, the execution was issued by the clerk and received by the sheriff, and the sale of the property was fixed by the sheriff for June 12, 1882. ■ The sheriff gave due notice of the sale as required by law, but never gave any special notice to the attorney of the Keene Five-Cent Savings Bank. On June 12, 1882, the property, which was real estate, was duly offered for sale by the sheriff, and several bids were made therefor by different persons, and it was finally struck off and sold to John T. Stewart and John L. Trout for $465; they being the highest bidders for the property. They were also bona fide purchasers, and strangers to all the" prior proceedings. The property was in fact worth from $800 to $1,000. No person representing the Keene Five-Cent Savings Bank was present at the sale. It was the intention of the attorney, if he had received notice from the sheriff of the time fixed for the sale, to be present at the sale and to bid on the property up to the amount of the judgment rendered in favor of the Keene Five-Cent Savings Bank; but he received no such notice, and had no knowledge of the time fixed for the sale until some time after the sale occurred. The defendants, James Marsh and Catherine L. Marsh, are insolvent. Afterward the sheriff made return of his proceedings under the execution, and soon thereafter the purchasers moved the court for a confirmation of the sheriff’s sale; and the plaintiff, the Keene Five-Cent Savings Bank, moved the court to set aside the sale, and at the same time offered to bid on said property, if the sale were set aside and another sale ordered, the sum of $1,200. The defendants did not make any motions, nor indeed did they make any appearance in the case. The court overruled the motion to set aside the sale and sustained the motion to confirm the sale, and the sheriff was ordered to make a deed for the property to the purchasers. Of these orders the plaintiff now complains, and asks for a reversal thereof. The only grounds upon which a reversal is asked, are: (1) The inadequacy of the price for which the property was sold; and (2) the failure of the sheriff to give the special notice of the time fixed for the sale to the attorney of the plaintiff. Now inadequacy of price is seldom, if ever, a sufficient ground of itself to authorize the setting aside of a sheriff’s sale. (Freeman on Executions, § 309, and cases there cited; Herman on Executions, § 252, and cases there cited.) Generally, where inadequacy of price is taken into consideration for the purpose of setting aside a sheriff’s sale, there must also be something else taken into consideration for such purpose. The price itself must be so grossly inad equate as to show fraud or unfairness in the sale; or fraud, or unfairness, or some irregularity, must be expressly shown; or if it appear that the property was sold at an inadequate price because of the absence of the party moving to set aside the sale, then it must also be shown that such party’s absence was without fault on his part. He cannot neglect to attend the sale without a sufficient reason therefor, and then ask that the sale be set aside because of his absence and because the property for that reason was sold at an inadequate price. He must exercise all reasonable diligence himself to make the property bring a fair and reasonable price, or he will be remediless. Now the price in the present case is not so grossly inadequate as to show fraud or unfairness, and the property was in fact sold to bona fide purchasers, who had no connection with the suit, and who were entire strangers to all the prior proceedings. And we do not'think that the plaintiff’s absence from the sale is so entirely excusable as to authorize the plaintiff to deprive these bona fide purchasers of the fruits of their purchase. The plaintiff, by having the execution issued, and the property levied upon, and the sale advertised, invited all persons to come to the sale and bid upon the property; and the purchasers in this case, in response to this invitation, went to the sale in good faith and bid upon the property, and they being the highest bidders, the property was struck off to them: and now are they to be deprived of the fruits of their purchase for no other reason than that the plaintiff, for some insufficient reason, was not present at the sale to bid on the property and thereby make the property sell for a greater price? The rights of purchasers should not depend upon some secret and unknown vice founded upon the fault or negligence of the plaintiff, who is the moving party in all such cases, and the master of the situation. When a plaintiff has an execution issued and the property advertised and sold under the same, such plaintiff ought to know when the sale takes place and be there to protect his own rights. A plain tiff should not rely upon the sheriff’s giving special notice to him, a notice different from that given to all other persons. It is no part of the official duty of the sheriff to give special notice to the plaintiff, or to anyone else. The sheriff in the present case performed his whole official duty with respect to giving notice of the sale, and the plaintiff as well as others should have taken notice from the general notice given by the sheriff of the time of the sale. The plaintiff cites the case of Dewey v. Linscott, 20 Kas. 684, but that case we think is not applicable. In that case the property was worth about $800, and it was sold for only $50; and the plaintiff in that case was not absent from the sale on account of any want of knowledge or any fault on his part, but he, or rather his agent, was prevented from attending the sale by judicial 'process. And both parties in that case moved the court to set aside the sale. And a defendant’s motion to set aside a sale is generally entitled to more consideration than a plaintiff’s, for the sale is generally made against the defendant’s wishes and against his consent, while the sale is usually made at the instance of the plaintiff and under his directions, and he, above all others, ought to know when the sale takes place. The following cases we think come nearer applying to this case than the one above cited: Moore v. Pye, 10 Kas. 246; N. E. M. S. Co. v. Smith, 25 id. 622, 624; Collins v. Ritchie, ante, p. 371. All these cases have reference to the purchaser’s rights; and they are strong cases, for the reason that the decision of the district court in each case setting aside the sheriff’s sale was reversed by the supreme court. The first case, that of Moore v. Pye, also has reference to the want of any right on the part of the plaintiff to rely upon promises made by the sheriff outside of his official duties. And upon this same subject, also see Knight v. Herrin, 48 Me. 533, 537, and cases there cited. The second case, that of N. E. M. S. Co. v. Smith, also de cides that proceedings after judgment are regulated in this state by statute; and that a sheriff’s sale should generally be confirmed whenever the proceedings are regular; and that “the court has no right at its discretion to release the purchaser or permit a tender after sale.” The judgment of the court below will be affirmed. All the Justices concurring.	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The opinion of the court was delivered by Brewer, J.: The only question in this case is one of priority between attaching creditors. The facts are these: An action in attachment was commenced in the name of “ C. M. Henderson and Wm. Henderson, partners as C. M. Henderson & Co.” The petition, affidavit and order of attachment were all thus entitled; and it is conceded that this attachment was prior to those of defendants in error. Afterward, by agreement of the defendant in the action in open court, the petition was amended by inserting the letter “S.” in the name of Wm. Henderson, and adding the name of Edmund Burke, so that the title thenceforward read “ C. M. Henderson, Wm. S. Henderson, and Edmund Burke, partners as C. M. Henderson & Co.” The petition as thus amended was on the same day refiled. No change in the title of the plaintiff was made in the affidavit or order of attachment, and no new affidavit was made, or order of attachment issued. This amendment was made after the levy of the attachment of defendants in error. Did this amendment deprive plaintiffs in error of their priority? This is the only ground disclosed by the record; for while counsel for defendants in error speak of other matters, they are outside the record, and cannot be considered by us. Of course no allegation in the motion or answer of the defendant in the attachment action amounts to anything, as no ruling was ever made on the motion, and judgment was rendered against the defendant. This question must be answered in the negative, and for these reasons: The amendment was one which ought to have been made, and one which did not change substantially the cause of action. It was always, and always alleged as, a cause of action in favor of the firm of C. M. Henderson & Co. Whether that firm consisted of two or ten members did not make the cause of action any the more or any the less one in favor of the firm. The only difference between the original and the amended petition was, that in the former the constituent members of the plaintiff firm were not fully described. The defect was a mere irregularity, which was, as it ought to have been, cured by amendment, which worked no fraud upon subsequent attaching creditors, and could not be taken advantage of by them. It was too slight a matter to affect or postpone the lien secured by the priority of levy. (Stout v. Folger, 34 Iowa, 71; Ward v. Howard, 12 Ohio St. 158.) The judgment of the district court will be reversed, and the case remanded with instructions to enter an order giving plaintiffs in error priority over defendants in error. All the Justices concurring.	[ -16, 120, -8, 110, 10, 96, 40, -102, 9, -127, -89, 83, -87, -53, 4, 113, -13, 41, 81, 106, 116, -73, 55, 106, -45, -13, -93, 21, -77, 76, -28, -33, 76, 40, 74, -47, -58, -118, -59, -36, -50, -125, 24, -28, -15, 8, 48, 99, 20, 79, 65, -34, -14, 36, 31, 74, 105, 45, 105, 29, -48, -79, -119, -115, 95, 21, 17, 118, -98, 69, -56, 46, -112, 49, -119, -23, 112, -74, -122, 116, 55, 59, 40, 98, 98, -127, 69, -17, 24, -120, 44, -50, -97, -25, -109, 89, 11, 33, -106, -35, 121, 16, -121, 126, -2, -107, 28, 108, 5, -113, -10, -77, -2, 118, -36, 11, -18, -125, -112, 113, -52, -32, 92, 66, 59, 27, -114, -48 ]
Per Curiam: This was an action to recover damages for the killing of a cow ,by a hand-car on defendant’s railroad. The judgment must be affirmed, on the authority of the Rld. Co. v. Wilson, 28 Kas. 637. The injury having been done at a public crossing, the court instructed the jury to find a verdict for the defendant, unless the injury was caused by the culpable negligence of the defendant, its agents, or employés. Of this the company has no cause of complaint. The testimony was in some respects contradictory, but there was testimony, sufficient to sustain the verdict, showing that the hand-car was coming at an unusual rate of speed on a down grade, with a strong wind in its favor and helping to increase the speed. The cow was seen some two or three hundred feet before the crossing was reached. She moved slowly and deliberately toward the track, but no brake was applied until the car was within thirty feet of the crossing. The car had been used some time, and the brake was smooth and could not stop the car before it struck the cow. If the brake had been in good condition, the car might have been stopped even after it was in fact applied; and if it had been applied a hundred feet before the crossing was reached, it would have stopped the car as it was. There was some portion of one of the instructions, referring to other and improved hand-cars, which was perhaps not strictly applicable; and yet, as appears from the answers of the jury to special questions, it obviously in no manner affected the verdict. While there was this testimony as above described, sufficient, as we think, to show negligence, it should also be stated that there was testimony of a different tendency given by the defendant, which would have warranted the jury in finding due care. But questions of fact of this nature upon opposing testimony, are settled by the triers of fact. The judgment will be affirmed.	[ -14, 126, 20, -83, 14, 96, 58, -102, 69, -87, -73, -109, -83, -53, -108, 41, 119, -3, -43, 35, -44, -93, 87, -61, -77, -45, -13, -59, -73, 106, -26, 71, 77, 48, -54, 21, 102, -56, 65, 88, -114, -74, -119, -12, 25, -112, -72, 122, -42, 71, 49, -98, -29, 46, 24, 67, 41, 44, 107, 45, -48, -15, -54, -123, 127, 18, -77, 36, -98, 39, -40, 58, -104, 49, 0, -8, 114, -76, -121, -44, 105, -103, 12, 70, 103, 33, 20, 77, -8, -120, 39, -34, 15, -89, 24, 24, 75, 39, -105, -99, 86, 80, 6, -20, -2, 77, 91, 96, 1, -49, -76, -77, -49, 124, 18, 21, -21, -93, 18, 113, -52, -6, 92, 5, 82, -101, -98, -73 ]
The opinion of the court was delivered by Brewer, J.: Defendant in error, plaintiff below, holding a judgment in the district court of McPherson county against the plaintiff in error, filed an affidavit for the garnishment of one W. F. Schell. This affidavit was filed March 8,1883, and the notice of garnishment was served on Schell the next day. On November 10, 1883, Schell answered that he had $20 in his possession belonging to defendant. On the same day an order was made that he pay it into court, which was done. On January 2, 1884, defendant filed his motion to set aside the garnishee order, and to order the clerk to pay to him the $20 paid in by the garnishee, on the ground that such money was a portion of the proceeds of the sale of defendant’s homestead, and that he intended to use the same in the purchase of another. In support of this motion he filed his own affidavit. The same day the motion was overruled, and now he brings the case here on error. He claims that the order of November 10th was a nullity because not in fact made until November 23d; that the district court of Saline county convened on November 19th, and that therefore the court was not in session in McPherson county on the 23d. The order reads: “And now on this 10th day of November, this ease came on to be heard upon the motion,” etc., and is signed, “Approved. — J. H. Prescott, Judge.” Following which are the words, “Filed November 23, 1883. — H. C. Pyle, Clerk of the District Court.” The certificate of the clerk to the transcript certifies it to contain “true, full and complete copies of journal entries, as filed November 23, 1883,” etc. And upon that we remark that it would seem from the entry itself that the order was in fact madeNovember 10th, that the entry of such order was not written out until afterward, and until its form had been approved by the district judge. Of course if a judgment is in fact rendered ata term, it does not cease to be a judgment of that term because the work of writing out the entry on the record is not performed until after its close. And as this order purports to have been made on November 10th, which was nine days before the commencement of the term in Saline county, and as there is nothing to show that it was not made at such date, except that the form was not prepared and approved by the court and filed by the clerk until the 23d, it must be presumed to have been made at the time it purports to have been. But there was nothing to prevent the district court of McPherson county from being in session on November 23d, and we are not to assume that it was not. (The State v. Montgomery, 8 Kas. 351.) It is claimed that the money was exempt, because it was the proceeds of the sale of one homestead and intended to be used in the purchase of another. Assuming that it was so exempt, still we think the ruling must be sustained, for the question is not what is sufficient to defeat an application for an order in the first instance, but what is sufficient to compel the setting aside of such order several weeks after it has been made, and after its commands have been fully performed. There is nothing in the record to show that defendant did not have notice of all these proceedings as they occurred, and though the order was made either November 10th, or 23d, his motion was not filed until January following and' until after the money had been paid in to the clerk and by him paid out. The record before us does not purport to contain all the entries, or all the papers or affidavits or other testimony. It simply purports tcJ be a transcript of two certain entries, and of certain named papers and affidavits. What else there was before the district court we are not informed, and it is’ not sufficient ground for setting aside an order to show that there was a good defense to it at the time it was made. . A party may have a good defense to an action, but if he fail to make such defense when the case is called for trial, he will not be permitted to come in weeks afterward and say that the judgment was wrong and ought to bé set’ aside, simply because he had a good defense. The same rule applies to an order. (Code, § 568.) The garnishee proceedings were pending from March until November, and no reason appears why during such time the defendant did not assert his rights. The record does not purport to be full, or contain all the proceedings. Perhaps it clearly appeared to the court that he was guilty of laches in not asserting his rights sooner. At any rate it does not appear affirmatively that he acted promptly, and it does appear that he waited until after the order had been made and its commands performed. We may not presume error, and hence the order of the district court will be affirmed. All the Justices concurring.	[ -14, -20, -71, -51, 42, 64, 34, -118, 81, -127, -91, 83, -23, -54, 4, 121, 99, 41, -12, 120, -30, -73, 23, 97, -46, -13, -63, -43, -79, 77, -28, -42, 76, 34, 106, -99, 102, -32, -121, -36, -50, -122, -119, -18, -47, 9, 48, 121, 18, 11, 101, 46, -29, 43, 29, 99, -23, 45, -21, 57, -15, -15, -66, 5, 95, 22, -111, 6, -104, 6, 72, -86, -104, 53, 1, -8, 118, -74, -122, 116, 47, 63, 44, 126, 98, 99, 29, -51, -88, -88, 15, 63, -99, -26, -110, 88, -85, 45, -74, -99, 61, 82, 7, 116, -18, -123, 25, 60, 3, -50, -44, -109, 29, 51, -102, 11, -1, -93, 48, 113, -51, -94, 92, 71, 112, -101, -113, -8 ]
The opinion of the court was delivered by Horton, C. J.: This was an information for libel, instituted by Nicholas Zimmerman, as prosecutor, against Michael Eeinish. Upon the trial the jury found and returned the following verdict: “We, the jury, impaneled and sworn in the above entitled case, do, upon our oaths, find the defendant not guilty; and we do further find that this prosecution was instituted by Nicholas Zimmerman without probable cause, and from malicious motives. O. S. Hiatt, Foreman.’1’ Upon motion of the prosecuting witness, Zimmerman, the trial court set aside so much of the verdict as found the prosecution malicious and without probable cause. Judgment was thereon rendered against the county of Leavenworth for the costs. This is the ruling complained of. In all prosecutions for libel, the jury have the right to determine, at their discretion, the law and the fact; and therefore in such eases the instructions of the court are not to bind the consciences of the jury, but only to inform their judgments, (Comp. Laws of 1879, p. 366, §275.) . Under the provisions of §326 of the criminal code, the jury trying the case exercised the right permitted by the statute of stating in their finding the name of the prosecutor, and that the proceeding was instituted without probable cause and from malicious motives. The court had no power to set aside the verdict in such a case, and it was equally powerless to set aside a part thereof. Therefore, in the absence of such power, the order of the court was erroneous and must be reversed. Upon the verdict, the prosecutor should have been adjudged to pay the costs. The counsel for Zimmerman suggests that the state has no standing in this court, on the ground that the matter befpre us is not appealable. Section 283 of the'criminal code reads— “Appeals to the supreme court may be taken by the state in the following cases, and no other: “First, upon a judgment for the defendant, on quashing or setting aside an indictment or information; second, upon an order of the court arresting the judgment; third, upon a question reserved by the state.” Upon the trial, the state excepted to the ruling of the court relieving the prosecutor from the payment of the costs, and adjudging the county to pay the same. Therefore, for all purposes, the question presented to us was reserved by the state, and the case is appealable under the third subdivision of said §283. Unless this subdivision authorizes appeals in such cases as this, we cannot imagine the purpose of its incorporation in the statute. If this construction cannot be given to said subdivision, it has no force or meaning. The ruling and judgment of the district court will be reversed, and the cause remanded with direction that the prosecutor shall be adjudged to pay the costs, and be committed to jail until the same are paid or secured to be paid. All the Justices concurring.	[ -80, -18, -8, -82, 42, 96, 50, 24, 81, -125, -74, 115, 105, -46, 21, 125, -77, 57, 85, 107, 70, -73, 39, -61, -74, -78, -45, -43, -79, -51, -12, -4, 76, -80, -54, -107, 102, 75, -47, 84, -114, -122, -88, 81, 80, 74, 48, 58, 82, 79, 49, -33, -29, 42, 25, -61, -88, 44, -34, -83, 1, -80, -98, 15, 77, 6, -77, 39, -100, 2, -40, 44, -104, 49, 1, -24, 115, -74, 2, -43, 105, -103, -120, 110, 98, 49, 53, -18, -4, -119, 15, 127, 15, -89, -104, 89, 10, 12, -73, -35, 117, 16, 14, 100, -26, 21, 28, 108, 11, -118, -124, -77, -17, 60, -66, 86, -49, -95, 48, 112, -50, -14, 92, 71, 123, 91, -98, -76 ]
The opinion of the court was delivered by Brewer, J.: This was an action of ejectment, brought by plaintiff in error, plaintiff below, to recover the possession of the northeast quarter of the northwest quarter of section thirty-five, township fourteen, range four, in Saline county. The case was tried by the court without a jury, upon an agreed statement of facts, and judgment rendered thereon in favor of defendant. The facts are these: In 1874, C. W. Bates owned the northwest quarter of said section thirty-five. In March of that year a suit was commenced against him in the district court of Saline county, and being a non-resident, jurisdiction was obtained by attachment of said quarter-section, and service made by publication. No other service was had, and no appearance was made by said Bates in the action. When attached, the quarter-section was appraised at $480, and the appraisement duly returned with the order of attachment. In May, 1874, a judgment was rendered in favor of the plaintiff and against said Bates for the sum of $514.70 and costs, and the sale of the attached property. The journal entry of judgment reads as follows: “It is therefore considered by the court, that the said plaintiff recover of the said Charles W. Bates, principal, and John F. Randolph, surety, the said sum of five hundred and fourteen dollars and seventy cents, and also his costs in and about said suit in his behalf expended, taxed at $-; and on motion of the said William F- Parker, by Spivey and Wildman, his attorneys, it is ordered that the said sheriff proceed as upon execution to advertise and sell so much of the real property heretofore attached in this action, now in his hands remaining, as will satisfy the said plaintiff of his aforesaid judgment and costs.” It will be seen that in this journal entry the amount of costs is not carried out. What entries were made on the judgment or appearance docket in respect to the costs is not shown. (See Code, §§703,704,706.) In September, 1874, Bates conveyed the land to the ancestor of plaintiff. In March, 1877, no prior writ having issued, one August Bondi, who had been the clerk of the court at the time of the above-mentioned proceedings, and who had costs due him in said case, ordered the then clerk, Neis Peterson, to issue an execution for the collection of the costs therein. An execution was accordingly issued. This execution, after reciting the judgment for costs,contained this command: “ These are therefore to command you, that of the goods and chattels of the said Charles W. Bates and John F. Randolph, you cause to be made the $16.90, debt, damages and cost aforesaid; and for want of goods and chattels you cause the same to be made out of the lands and tenements of the said Charles W. Bates and John F. Randolph, to wit, the real property heretofore attached in this action, to wit, the northwest quarter of section thirty-five,” etc. Under this execution the sheriff levied upon the north half of the northwest quarter of said section 35, caused it to be appraised in two separate tracts, to wit, the northeast quarter of said northwest quarter of section 35 at $200, and the northwest quarter thereof at $160. The property thus levied upon was offered for sale, but not sold for want of bidders. Thereafter, in July, 1877, a second execution was issued for the same costs, and under such execution the property in controversy was sold to one J. M. Greeley. The sale was confirmed by the court, and thereafter Greeley conveyed to defendant. If by these proceedings the title was transferred and vested in defendant, the judgment was right; otherwise the plaintiff was entitled to a recovery. Upon these facts counsel for plaintiff states that two questions are presented for consideration, namely: First, the judgment not being a personal one, could execution be issued and a levy and sale be made under it, which would convey the title to real estate which was vested in the judgment debtor at date of the judgment, but not at the time of the levy? Second, if the execution and subsequent order can be held as a substitute and equivalent to the order of sale authorized by the judgment and attachment, is the sale valid, appearing, as it does, to have.been made regardless of the attachment appraisement? We think the questions as stated by counsel need to embrace some other facts, in order to present the real questions involved in the case. It may be conceded that the judgment, being based upon service by publication in an attachment action and without any appearance on the part of the defendant, bound only the property attached; but it bound that property, and bound it, not from the time of sale or the time of judgment alone, but also from the time of the levy of the attachment. And it bound it, not merely for so much of the judgment as was.for the debt, but also for that portion of it which was for costs. The judgment fixed the lien, which related back to the levy of the attachment, and fixed it so that it could not be disturbed by any action on the part of the defendant alone. At the time, therefore, of the issue of the first execution, there was a lien by attachment and judgment for costs on the specific quarter-section attached. Now the execution which was then issued was unquestionably irregular. It should have been simply a command to sell the attached property, and not, as it was in form, a command to satisfy the judgment out of the goods and chattels of defendant, and for want thereof out of the specific property seized on the attachment. The first command in this execution was unauthorized, but nothing was done under it; and therefore its presence in the writ does not vitiate the remainder, which contained the command that' should have been made. It can be treated as mere surplusage. It is true the form of the last command should properly have been to sell the property attached and’apply the proceeds in satisfaction of the judgment, whereas it in fact read to make the debt, damages and costs out of such property. But so far as any question .can arise in this case, we think the difference is only an irregularity which cannot be taken advantage of in any collateral proceeding. We shall have something more to say about this when we come to consider the question of the second appraisement; for the present it is enough to say that, at the time of the issue of the first execution, there was a perfect lien for the costs of that action on the real property attached, and that the execution commanded the .officer to subject that real estate to the payment of such lien. It may be laid down as a general rule, that where process contains the specific command which it ought to contain, and where the thing specifically commanded is the only thing done by the officer, such process will be sustained although it contains other and improper commands. Such other commands, not being obeyed by the officer, will be treated as surplusage. (Pracht v. Pister, 30 Kas. 568.) So far as the other question stated by counsel is concerned, it appears that the entire quarter-section was attached and appraised. When the execution was issued a levy was made only on the half of this property, and it was separately appraised. By the code, §222, a judgment in attachment is to be satisfied by the sale of so much of the property attached as may be necessary. Now although the entire quarter-section was taken under the attachment, it would have been manifestly unjust, as well as contrary to the clear requirements of said section, to have sold it all to satisfy a little matter of costs. And if only a portion of the tract is to be subjected to sale, that portion should be separately appraised in order that the court may see that it is not sacrificed. Hence whatever might be the rule in respect to a second appraisement when the whole property attached is offered for sale, (and of that we need not now stop to inquire,) it is manifest that there was no impropriety in appraising that portion of the whole tract which was in fact offered for sale and sold. At most, this was but an irregularity which could have been corrected alone on motion, and cannot be taken advantage of in a collateral attack. The only other matter which we deem necessary to notice is, that in the journal entry of judgment the amount of the costs is not stated, a blank being left for the amount. This blank of course ought to have been filled. (Comp. Laws 1879, ch. 80, § 593a.) But inasmuch as on the appearance and judgment docket are required to be entered the costs, and as these dockets were not introduced in evidence, we think it must be presumed that the costs were properly taxed, and therefore that an execution to recover them was not void. (Linton v. Housh, 4 Kas. 535.) There being nothing else requiring notice, the judgment will be affirmed. All the Justices concurring.	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The opinion of the court was delivered by Brewer, J.: Plaintiff brought an action of ejectment against defendants. The case was tried by the court without a jury. The findings of facts are as follows: “In 1874, O’Brien, being the owner in fee simple of the west half of the northwest quarter and lot one of the southwest quarter, all of section seventeen,, town nine, range four, east, all in Clay county, Kansas, and being in possession thereof, conveyed the same by warranty deed to one H. R. Dunham. On the 5th of September, 1877, said H. R. Dun-ham died intestate. At the time of the conveyance to him by O’Brien, he took possession of the land, and so continued in possession until his death. The defendant Fidelia Burnell, then Fidelia Dunham, was the wife of H. R. Dunham, and was left a widow at his death. The defendants John Dun-ham and E. M. Dunham are children of the said H. R. Dunham. After the death of H. R. Dunham, his widow, Fidelia, married defendant S. P. Burnell. She, with her present husband, is still in possession of the premises in question. “At the time of the conveyance to H. R. Dunham by O’Brien, one-third of the purchase-money was paid by said H. R. Dunham, one-third by the plaintiff, Thomas J. Ingham, and the other one-third by one E. M. Dunham, a brother of H. R. Dunham, but who is not a party to this suit; and by agreement, and without any fraudulent intent, the said H. R. Dunham was to hold an undivided one-third of said lands in trust for said plaintiff and another undivided one-third in trust for said E. M. Dunham, a brother of said H. R. Dunham. “On the 2d of July, 1877, the said H. R. Dunham being in failing health and not expecting to live, an arrangement was made between said H. R. Dunham, his said brother E. M. Dunham, and plaintiff, by which H. R. Dunham and his wife were to convey said land by a warranty deed to plaintiff, which deed was duly made, executed and delivered on said 2d of July, 1877, it being then understood, as at the time of the conveyance by O’Brien to H. R. Dunham, that the real interest of said plaintiff was an undivided one-third, and that the two Dunhams, H. R. and his brother E. M., still each retained also an undivided one-third interest, and the agreement was that plaintiff was to hold the land in trust, one-third for H. R. Dunham and one-third for E. M. Dunham. “The parties also verbally agreed at this time, July 2,1877, that plaintiff should take and maintain full control and possession of said land, to use, or lease, or sell the same as he should deem best for the interest of the parties, and keep an account of all expenses, taxes and charges, and sell said land when he should deem it to the mutual advantage of the parties, and after the same was sold he was to account for the clear proceeds of the sale as follows: one-third to himself, one-third to E. M. Dunham, brother to H. R. Dunham, and one-third to H. R. Dunham or his heirs. This verbal agreement was never reduced to writing. “Plaintiff has never consented to the possession of defendants, or any of them, since the date of the deed of July 2, 1877.” As conclusions of law from the foregoing facts, the court found that— “Plaintiff holds the legal title to said land in trust, as follows: one-third for said E. M. Dunham, brother of H. R. Dunham, deceased; one-sixth for defendant Fidelia Burnell; one-twelfth for defendant John L. Dunham,, and one-twelfth for defendant E. M. Dunham; that said defendants are entitled to judgment in this case for costs of suit against this plaintiff; that partition cannot be made in this case, for the reason that said E. M. Dunham, brother of H. R. Dunham, deceased, is not a party to this suit.” Plaintiff excepted, and brings the case here. It is conceded that plaintiff is a trustee for the defendants, but the contention is that he is not the trustee for the land as land, but only one holding in trust the net proceeds of the sale of the land; that the direction being to sell, equity will treat that as done which is to be done, and that this is an instance of equitable conversion in all its features and should be governed by the equitable rules concerning conversion. We cannot agree with counsel in this. The trust was in the land. He was to take the land as trustee; was to use, lease, or sell, as-he should deem best for the interest of the cestuis que trust. The trust, if it existed all, existed before the sale, and it was an express trust, not one resulting from any act done by the parties, such as the payment of money, etc., but existing only by virtue of the agreement of the parties, the express direction of the grantor. It was neither an implied, a resulting, nor a constructive trust. But such a trust cannot be created by a mere parol agreement. It can only be done by an instrument in writing; that is, the trust m.ust be declared in and evidenced by some written instrument. (Comp. Laws 1879, p.989, §1.) The existence of the alleged trust was therefore not established. Again, the plaintiff insists that possession follows the legal title, and that a trustee may maintain ejectment against his cestui que trust. This is doubtless generally true where there is an active trust, where the trustee has some duty to perform in reference to the trust property. It would be true in this case, if the express trust heretofore referred to had been validly created by an instrument in writing. But where there is only a passive trust, where the trustee simply holds the naked legal title in trust, for the benefit of the cestuis que trust, then he cannot dispossess the latter. The law executes the trust. (Martindale ^n Conveyancing, 109 and 110; Tiffany and Bullard on Trusts, 810; Tyler on Ejectment, 75.) Plaintiff’s remedy was an action for partition, making all the parties interested in the title defendants. The judgment will be affirmed. All the Justices concurring.	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The opinion of the court was delivered by Horton, C. J.: The facts in this case are substantially these: On March 13, 1872, a judgment was rendered in favor of A. H. Sours against M. F. Schwartz as principal and George Gruble as surety, for $907.35, in the district court of Wyandotte county. Afterward the judgment became dormant. On Deccember 24,1877, a pretended judgment of revivor was rendered at chambers; in January, 1878, there was made upon the judgment $696.12; this sum was made upon an execution issued upon the said pretended revivor, which revivor was wholly void; upon this execution the goods of George Gruble were seized, and sold for $855.22; on April 10, 1880, another pretended judgment of revivor was entered for $681.80, against George Gruble alone; an execution was issued on this pretended revived judgment, and lot 6, in block 154, in Wyandotte city, in this state, was levied upon, advertised, and sold on July 6, 1880, as the property of George Gruble, to one D. B. Hadley, for $167, which sum, after paying the costs up to that date of $31.70, was credited upon the judgment. Hadley bid in the lot, as attorney for Sours, and by an arrangement between him and Sours, conveyed the premises to the plaintiffs by deed of general warranty. On May 23,1881, the plaintiffs commenced an action against the defendants for the recovery of this real estate, but judgment was rendered against them, the court deciding that the pretended judgment of revivor, made on the 10th of April, 1880, was void. Thereupon the plaintiffs filed a motion asking the court to adjudge that the taxes paid by their grantor, to wit, the sum of $151, with 12 per cent, interest thereon, be adjudged a lien upon the lot, and in default of payment thereof, that the lot be sold to satisfy the taxes, interest and costs. The court denied the motion, and the plaintiffs complain of this ruling. They contend that as the court adjudged Mary Gruble, one of the defendants, to be the owner of the premises in controversy, that they were entitled to have an order entered making the taxes paid a lien on the lot. Section 149, page 969, Comp. Laws of 1879, is referred to. This section reads: “In case taxes are paid by any party whose lands are in controversy in any of the courts of this state, and the party so paying shall fail to recover said land, he shall be entitled to collect from the parties recovering the taxes so paid, with 12 per cent, interest thereon, and the taxes so paid shall be a lien on any such land.” This section is not applicable. The taxes sought to be made a lien were paid November 22, 1880; at that time the lot was not “ in controversy in any of the courts of this state.” The statute prescribes a special remedy, and a person attempting to avail himself of it must bring his case within its very terms to succeed. . The ruling and judgment of the district court must therefore be affirmed. All the Justices concurring.	[ -16, 110, -76, -99, 42, 96, 56, -102, 64, -95, 54, 83, -23, -110, 0, 61, 118, 93, 84, 120, 70, -77, 22, 35, 82, -13, -37, -51, -79, 109, -28, -60, 76, 48, 66, -99, -26, -30, -47, -44, -122, -123, 41, -24, 83, 64, 56, -87, 0, 75, 81, 42, -13, 47, 61, -53, 73, 44, 95, 57, -15, -40, 124, -41, 95, 22, 2, 6, -98, -125, 72, 10, -104, 53, 1, -24, 115, -74, -122, 116, 15, -37, 45, 38, 103, 49, 52, -81, -32, -84, 15, -33, -97, -89, -48, 24, 82, 105, -74, -103, 124, 22, 3, -6, 98, -124, -35, -23, 3, -54, -74, -79, 11, -72, -118, 67, -53, -25, 50, 112, -51, 66, 125, 71, 80, -101, -114, -80 ]
The opinion of the court was delivered by Valentine, J.: On January 17,1881, Constable Kuykendall held a fund of about $225 in his hands, which was the proceeds of a sale of goods belonging to Geo. O. Wilmarth, the judgment 'debtor in eight different cases in which the parties hereafter named were the judgment creditors. These judgment creditors held execution liens upon this fund -in the following order, to wit: (1) The Western News Co.; (2) James Douglas; (3) J.M.W. Jones Stationery and Paper Co.; (4) Reynolds & Reynolds; (5) Kate Douglas; (6) M. H. Case; (7) The Williamson-Stewart Paper Co.; (8) T. J. Kellam & Co. A dispute arose between the judgment creditors as to the priority of their liens, and to save costs and expenses they amicably submitted their controversy, under § 525 of the civil code, to the district court, the first five of which were -to be treated as plaintiffs, and the last three of which were to be treated as defendants. They were so classified for the reason that the liens of the first five existed by virtue of executions held by Constable Miller, while the liens of the last three existed by virtue of executions held by Constable Kuykendall. It will be seen that this controversy was in the nature of a bill of interpleader. The district court decided in favor of the defendants in that court and against the plaintiffs, and the plaintiffs duly excepted. The district court fixed the priority of liens as follows: (1) M. H. Case; (2) The Williamson-Stewart Paper Co.; (3) T. J. Kellam & Co.; (4) The Western News Co.; (5) James Douglas; (6) Kate Douglas; (7) J. M. W. Jones Stationery and Paper Co.; (8) Reynolds & Reynolds. Two of the plaintiffs, The J. M. W. Jones Stationery and Paper Co. and Reynolds & Reynolds, then brought the case to the supreme court, making the defendants in that case, M. H. Case, the Williamson-Stewart Paper Co., and T. J. Kellam & Co., defendants in error. The other plaintiffs in that case, to wit, The Western News Co., James Douglas, and Kate Douglas, were not made parties in this court. The case, however, was tried in this- court, and determined just as though all the parties were present in court litigating the questions involved in the case, and the decision of this court was made accordingly, reversing the judgment of the court, and remanding the case for further proceedings in accordance with the views expressed in the written opinion of the court. (Stationery and Paper Co. v. Case, 26 Kas. 299.) All that was intended by this decision, however, was» simply to say that the liens procured by virtue of the Miller executions were prior to the liens procured by virtue of the Kuykendall executions, leaving the decision of the district court upon all the other questions to remain in full force and undisturbed. There was no intention to disturb the decision of the district court with respect to the priority of the liens of the several parties in any other particular. When the case was taken back to the district court, another claimant presented himself and demanded the fund; and he also was allowed to interplead for the fund. This other claimant was E. G. Hentig, the assignee of Geo. O. Wilmarth,the judgment debtor. Afterward a trial was had in the case in the district court, though it does not appear that any of the claimants were present except the J. M. W. Jones Stationery and Paper Co. and Reynolds & Reynolds and F. G. Hentig. Why the case was thus tried in the absence of nearly all the claimants, nearly all the real parties in interest, is not disclosed. The court decided this contest in favor of Hentig, and awarded to him the entire fund in controversy. The said J. M. W. Jones Stationery and Paper Co. and Reynolds & Reynolds again brought the case to the supreme court, making F. G. Hentig the defendant in error. None of the other parties or claimants were made parties in the supreme court, but the case was submitted to the supreme court and argued in the briefs of counsel just as though all the parties interested in the fund were present in the court and parties to the petition in error, either as plaintiffs or defendants; and the court decided the case as though such were the case, and ordered that the fund be paid out to the parties respectively in the same manner that the district court should have ordered the same to be paid out on the first trial of the case in that court. (Stationery and Paper Co. v. Hentig, 29 Kas. 75, 80.) A mandate was issued to the district court, and the district court rendered judgment in accordance with the mandate; and the J. M. W. Jones Stationery and Paper Co. and Reynolds & Reynolds, being dissatisfied therewith, again brought the case to the supreme court, but the judgment of the district court was affirmed. (Stationery and Paper Co. v. Western News Co., 30 Kas. 334.) Afterward, and on July 6, 1883, the J. M. W. Jones Stationery and Paper Co. and Reynolds & Reynolds filed a motion for a rehearing in this court in this last-mentioned case, which motion for a rehearing is still pending in this court. Afterward, and on September 4, 1883, the J. M. W. Jones Stationery and Paper Co. and Reynolds & Reynolds filed, a motion for a rehearing in the Hentig case, (the case reported in 29 Kas. 75,) which motion is also pending in this court, and is the one which we are now considering and the one for which this opinion is prepared. The Hentig ease was decided December 7, 1882, and at the July term of this court in 1882; and the motion for the rehearing in that case was filed September 4, 1883, and at the July term of the court in 1883. The motion for the rehearing was not filed at the same term at which the decision was rendered, nor at the next term thereafter; but it was in fact filed at the second term thereafter, and nearly a year thereafter, and after one whole term of the supreme court and parts of two other terms had intervened. The questions now arise: Should this motion for a rehearing be entertained, and should it be sustained? There is really no merit in the motion. The judgment as it is now rendered by the district court is precisely the judgment that should have been rendered upon the original trial in the district court; and with respect to the matters now complained of it is precisely the judgment that was in fact rendered in the district court upon the original trial. All that the present plaintiffs in error, the J. M. W. Jones Stationery and Paper Co. and Reynolds & Reynolds, complain of is, that by the present judgment of the district court the liens of the Western News Co. and of James Douglas are given priority over the liens of the present plaintiffs in error. Now the district court on the original trial also gave just such priority of liens; and to that extent there has never been any intention on the part of the supreme court to overrule or reverse the judgment of the district court, and the district court itself has never changed or overruled any of its rulings upon this subject. The supreme court could not well' have reversed the judgment of the district court giving priority to the liens of the Western News Company and James Douglas over those of the present plaintiffs in error; for the Western News Company and James Douglas have never been parties in this court. Certainly, this court could .not disturb their rights without jurisdiction over them, or without having them before it. The only right which the present plaintiffs in error have ever had was to obtain a judgment declaring their liens prior to the liens of all others except those of the Western News Company and James Douglas, and the present judgment of the district court is precisely to that effect. When the district court decided that the liens of M. H. Case, the Williamson-Stewart Paper Company and T. J. Kellam & Co. were prior, to those of the present plaintiffs in error, the present plaintiffs in error had a right to have such decision reversed; but they had no right to have the decision of the district court, declaring that the liens of the Western News Co. and James Douglas were prior to those of the present plaintiffs in error, reversed. And they have never taken any proper steps to have this last-mentioned decision reversed, and it has not been reversed. Now as the liens of the Western News Co. and James Douglas are in fact prior to the liens of the present plaintiffs in error, and ais the district court in its original judgment so declared, at what time did the plaintiffs in error, or anyone else, overturn and destroy this priority of liens and make the liens of plaintiffs in error prior to those of the Western News Co. and James Douglas? Did they consummate this change in the priority of liens by their proceeding in the supreme court, in which they did not make the Western News Co. and James Douglas parties, and in which the Western News Co. and James Douglas were not parties? Do' they suppose that they can destroy rights by obtaining judgments in cases in which the persons entitled to such rights are not parties,.? There has certainly never been any intention on the part of the supreme court that such should be the case. And the district court has never attempted to render any judgment giving the liens of the present plaintiffs in error any priority over the liens of the Western News Co. and James Douglas. The judgment of the district court has always been the other way. And all that the supreme court has ever intended to decide with reference to these liens different from the decisions of the district court has been that the Miller executions had priority over the Kuykendall executions, and that Hentig’s claim was inferior and subsequent to the liens of all the other parties connected with this litigation. The plaintiffs in error seem to entertain the erroneous belief that they can destroy rights and overturn priorities by simply bringing a ease to the supreme court, and making only a portion of the parties in interest parties in the supreme court. They seem to labor under the erroneous belief, that by leaving out the Western News Company and James Douglas, and not making them parties in the supreme court, they have destroyed their rights, or at least overturned their priorities of interest in the fund in controversy. If- the fact that the plaintiffs in error had not made all the parties in interest parties in the supreme court, had been presented to the attention of the court, the court would in all probability have dismissed their cases without any judgment except a judgment of dismissal, and for costs. (Ex parte Polster, 10 Kas. 204; Ferguson v. Smith, 10 id. 396; Armstrong v. Durland, 11 id. 15; Hodgson v. Billson, 11 id. 357; Bassett v. Woodward, 13 id. 341; Richardson v. McKim, 20 id. 346; Browne’s Appeal, 30 id. 331.) But this fact was not presented to the attention of the supreme court, and hence the supreme court decided each case just as though all the parties in interest were parties in this court. We think that under no circumstances should a party be allowed to gain an advantage by bringing a case to the supreme court and omitting to make some of the interested parties parties in the supreme court; and in no case should a judgment be interfered with by the supreme court where one of the parties to the judgment is not a party in the supreme court. Even if Hentig, by a judgment of the district court, should have obtained the prior rights of the Western News Company and James Douglas, such judgment should not be disturbed without making the Western News Company and James Douglas parties to the proceeding; for they might be willing to have their priority of rights transferred to Hentig, but not willing to-have the same transferred to the plaintiffs in error. And while the plaintiffs in error would have a right by petition in error to obtain from Hentig what Hentig had erroneously gotten from them, still they would have no right to obtain from Hentig what Hentig had obtained from the Western News Co. and James Douglas, and what never belonged to the plaintiffs in error. But what we have said with reference to these matters we think is really unnecessary in the present case, for we do not think that the present motion for a rehearing ought to be entertained. Where justice has been done, as it has been done in the present case, we do not think that a motion for a rehearing, filed during the second term after the term at which the decision was made, ought to be entertained. Some courts will not entertain a motion for a rehearing filed during even the first term after the term at which the decision was made; and certainly where justice has been done, as it has been done in the present case, no court ought to entertain a motion filed during the second term after the term at which the decision was made. (See authorities cited by counsel for the Western News Co. and James Douglas: Peck v. Sanderson, 18 How. 42; Browder v. McArthur, 7 Wheat. 58; Caldwell v. Bruggerman, 8 Minn. 299; Ex parte Sibbald v. United States, 12 Pet. 491; 3 Dowl. P. C. 157; The Santa Maria, 10 Wheat. 442; Latson v. Wallace, 9 How. Pr. 334; Vermilye v. Seldon, 6 id. 41; Martin v. Wilson, 1 Comst. 240; Wilmerdings v. Fowler, 15 Abb. Pr. [N. S.] 90; 5 Kas. 425.) The motion for a rehearing will be dismissed. Horton, C. J., concurring.	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The opinion of the court was delivered by Horton, C. J.: This was an action brought by Frank Harwood against the Union Pacific railway company, to recover damages for personal injuries alleged to have been sustained through the negligence of the railway company. The evidence conduced to show that Scott & Thurston, residing at Junction City, in this state, were engaged in the business of shipping live stock over the Union Pacific railway to Kansas City; that Harwood was in the employ of the firm as a clerk; that Scott & Thurston had ordered from the railway company, the day prior to February 28, 1882, a car to ship hogs in; that on said February 28, between 11 and 12 o’clock, they, with their employés, including Harwood, went to the railway stock yards at Junction City to load the hogs in a car; that the train by which the shipment was to be made was due about 12 o’clock; that the car in which the hogs were to be loaded was not on the track when the parties got there; that the first thing Harwood did after he got down to the stock yards, was to drive the hogs from Scott & Thurs-ton’s yard into a pen of the Union Pacific stock yards, which had a shute opening into it, through which the hogs could pass or be driven up into the car in which they were to be loaded; that he had assisted Scott & Thurston to load hogs and other stock at these yards for the last four or five years; that an engine hauled two cars past the shute, and left them, in the presence of Harwood, the nearest one being about 30 feet north of the shute; that the engine was then uncoupled, and pulled up to the switch upon the main track; that the two cars hauled by the engine were left coupled together; that the yardmaster, whose duty it was to station cars, directed these two cars to be left north of the shute; that the yardmaster pointed out to Scott, of the firm of Scott & Thurston, the ear nearest the shute as the one he was to use; that there were three or four boards cut out at each end of the car pointed out; that Scott went after the car inspector to come and repair it; that about the same time his employés, either Freeman or Harwood, uncoupled the two cars and moved the car to be loaded by Scott & Thurston by hand down to the shute; that the brakes were not set, nor the wheels blocked of the other car left standing 50 to 80 feet north of the shute; that the car inspector with another man, one Morganfeldt, came down and went inside of the car to fix it; that they closed up the hole in the south end of the car and were going towards the north end; that at this time the wind was blowing quite hard, and it was slight down grade to the shute from the place where the car was left standing and unattended on the north; that Harwood was climbing up the shute to get in with the hogs so as to load them into the car; that one of the hogs got into the car from the shute about this time, and he changed his mind about climbing up, and passed around to the north end of the car to prevent the escape of the hog through the opening in the car; that his face was to the south; that while thus employed, the ear left standing north on the track, moved by the wind, came down the track, collided with the car at the shute, and caught Harwood between the drawheads, inflicting upon him severe and painful injuries; that Harwood had no knowledge the brakes were not applied to the car left standing and unattended north of the shute; that Scott asked the yardmaster to place the car for him to load his hogs in at the shute, but it was hauled north past the place and stopped at the yardmaster’s signal; that when the company did not place the cars at the shute by the engine to be loaded, the shippers were in the habit of placing them there; that the company furnished the cars to Scott & Thurston, and the latter always loaded them. The railway company claims the petition does not state a cause of action; that the court erred in overruling the demurrer to the evidence introduced by the plaintiff below, and further erred in overruling the motion of the railway company for judgment upon the special findings. The principal question presented is, whether, under the allegations of the petition and the evidence introduced upon the trial, Harwood was lawfully upon the track of the railway company at the time he was injured, and therefore whether the railway company owed to him any duty. If he had no legal right to be upon the track, or if he was a mere volunteer there, then of course the law imposed no duty upon the railway company except the general duty which every man owes to others, to do them no intentional wrong or injury. Under the contract between the railway company and Scott A; Thurston, the latter were to load the hogs in the ear. Scott requested the yardmaster to place the car for him at the shute so that he could load his stock in it. Instead of being placed at the shute, it was hauled, coupled with another, some distance north of it, and then the yardmaster pointed out to Scott this car as the one he was to use. After the yardmaster pointed out to Scott the car for him to load in, he seemingly relinquished all further care of and control over it. After this car had been hauled north of the shute, and the engine hauling it had pulled up to the switch on the main track, Scott & Thurston had no easy or convenient way to place the car at the shute of the stock yards other than by having their employés push it down by hand. Their employés, including Harwood, were not therefore trespassers or volunteers in uncoupling the car and pushing it down to the shute. They were acting for Scott A Thurston, and were lawfully upon the track in charge of one of the cars of the company, with the consent of the railway company. Therefore, to them the railway company. in the management of its cars owed the duty of exercising ordinary care and diligence. It was the duty of the company to take all necessary and reasonable precautions to render Scott & Thurston, and their employés, safe while engaged in the performance of the work about the car turned over to them for shipping the hogs; and while Harwood, and the other employés of Scott & Thurston, were on the track near the stock yards, attending to the business of Scott & Thurston, about the loading of the hogs in the car set apart for their use, or doing other work preparatory to loading, as was usual and necessary to do, the railway company had no right to endanger their persons or lives by the want of ordinary care in the handling and management of its other cars. If the railway company was guilty of ordinary negligence in leaving a car unattended upon the same track with the ear to he loaded by Scott & Thurston, without having secured the same by brakes or otherwise, to prevent it from moving upon the track, and the car was moved against Harwood, by the high wind then prevailing, and the latter was without fault himself, and free from any negligence or wrongful act on his part, directly contributing to the injury, the railway company must be held liable for the injury resulting to him from its negligence. (Stinson v. Railroad Co., 32 N. Y. 333; Haley v. Railroad Co., 7 Hun, 84; Brown v. Railroad Co., 8 La. 45; Newson v. Railroad Co., 29 N. Y. 83. See also Nicholson v. Railroad Co., 41 N. Y. 526.) Within the law thus stated the petition was not fatally defective. As there was evidence of actionable negligence on the part of the company, the case was not therefore one to-be taken from the jury. The question whether there was contributory negligence on the part.of Harwood was for the determination of the jury, under proper instructions, as a matter of fact. The jury found against the railway company. The findings of the jury are not, we .think, inconsistent with the general verdict, and the motion of the company for judgment upon the findings was properly overruled. Complaint is made concerning certain testimony admitted tending to show the custom in respect to shippers handling the cars in the stock yards at Junction City. The contract under which Scott & Thurston shipped their hogs on February 28, 1882, required them to load the stock, and as the yardmaster of the company pointed out and turned over to them the car afterward pushed down to the shute for their use, the evidence, under the circumstances, could not have been prejudicial, because it is apparent that the yardmaster expected Scott & Thurston to use the identical car they did use for the shipment of their hogs; and to load it with hogs, it was necessary to be placed at the shute. It was taken north of the shute and stopped, and then turned over for their use. Had Scott & Thurston or their employé Harwood, without the consent of the company, taken the car, or if the yardmaster had informed Scott & Thurston or their employés that the car was not to be uncoupled or moved until repaired, a different question would be presented for our consideration. Further, the evidence tended to show the company furnished the cars and the shippers loaded them, and that when the company left the cars a short distance from the shute, the shippers placed them at the shute, did not vary or modify the written contract in evidence; at most this evidence merely showed the manner of transacting business where the shippers were to load the stock. The instructions are also greatly criticised; but after a careful examination of all the objections made to them, we do not perceive any error sufficient to authorize us to grant a new trial. The railway company asked that the jury should be instructed not to compare the negligence, or supposed negligence, of the parties. This instruction might very properly have been given; but as the court carefully and fully directed the jury upon all the issues, the omission of this instruction is not sufficient to overturn the judgment. Many rulings of the trial court were commented upon in the case of Railway Co. v. Peavy, 29 Kas. 169; but we did not de cide in that case that every error referred to was of itself sufficiently material and substantial to cause a reversal of that judgment. The decision of the court below against the removal of the case to the federal court must be sustained, under the authority of Railway Co. v. Dyche, ante, p. 120. 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 Yalentine, J.: This was an action of mandamus, commenced by William Clark in the name of the state of Kansas against H. P. Smith, county clerk of Pottawatomie county, for the purpose of contesting the validity of a county-seat election held in that county on September 19, 1882. The action was commenced on October 12, 1882, in the district court of Pottawatomie county, under §§ 2 and 4, chapter 79, of the Laws of 1871. (Comp. Laws of 1879, ch. 36, ¶¶ 2276, 2278.) This was a second election for the location of the county seat of said county, the first election not having resulted in a choice. The first election was held on September 23, 1879. The canvass of the returns of that election was suspended for a long time by reason of the allowance of a temporary injunction, which injunction was finally dissolved by the district court, and this decision was affirmed by the supreme court. (Benton v. Nason, 26 Kas. 658.) But before the mandate of the supreme court in that case was presented to the district court, another temporary injunction was ob tained, which injunction was also dissolved by the district court, and this decision affirmed by the supreme court. (Sabin v. Sherman, 28 Kas. 289.) After considerable further delay, for reasons not necessary to state, the board of county commissioners finally met on September 7, 1882, and canvassed the returns of the first election, and no place having received a majority of all the votes cast, a second election was ordered to be held on September 19, 1882, between the two places having received the highest number of votes, to wit, the places of Wamego and Westmoreland. This election was held on that day, and the returns thereof were canvassed by the county board, and Westmoreland, having received a majority of all the votes cast, was duly declared and proclaimed to be the county seat of Pottawatomie county, and the county officers removed their offices to that place. Afterward, and on October 12, 1882, the relator, Clark, commenced this action of mandamus to compel the defendant, who is county clerk of the county of Pottawatomie, to remove his office from Westmoreland to Louisville, the-former county seat, and the place where the relator still claims that the county seat is located. The relator claims that both of said elections were void. On November 14,. 1882, the defendant, Smith, filed a demurrer to the relator’s-petition, which demurrer was, on November 18, 1882, sustained by the court, and the court quashed, set aside and dismissed the relator’s alternative writ of mandamus, and rendered judgment in favor of the defendant for costs. On June 8, 1883, sis months and twenty days after this ruling,, and after the rendition of this judgment, the relator, Clark,, filed a petition in error in the supreme court, asking a reversal of the said ruling and judgment of the district court. On. August 21, 1883, the defendant, Smith, filed a motion in this-court to dismiss the relator’s petition in error, upon the ground that such petition in error was not filed within the time prescribed by the statute for taking appeals in such cases. Whether this motion should be sustained, or overruled, is-the first question presented to this court for its consideration and decision. As before stated, this action was brought solely and entirely under chapter 79 of the Laws of 1871, which chapter relates to contests of county-seat elections and other elections; and it was brought in the name of the state of Kansas by Clark, a private relator, as such actions may be brought under that statute, but under no other statute or law. (The State, ex rel. Wells, v. Marston, 6 Kas. 524, 532; The State, ex rel., v. Jefferson Co., 11 id. 66; A. T. & S. F. Rld. Co. v. The State, 22 id. 13, and cases there cited.) Section 7 of said statute, as amended in 1872, provides, among other things, as follows: “All appeals from the judgment of the court upon proceedings instituted under this act shall be taken within sixty days from the date of its rendition.” (Laws of 1872, ch. 126, § 1; Comp. Laws of 1879, ch. 36, ¶ 2281.) All actions authorized by said chapter 79 of the Laws of 1871 must be brought in the district court, and no appeal in such actions or in any other civil action can be taken from the district court to the supreme court except by petition in error; and the relator, Clark, has instituted his appeal in the present case only by petition in error. The word “appeals” as used in said § 7, must mean appeals by petition in error, or it cannot mean anything. Unless it includes appeals by petition in error, the whole provision containing such word must be wholly nugatory, and the legislature which enacted it must have done a very foolish thing. Such should not be held to be the case if any other fair construction can be given to the statute. Appeals may be taken by petition in error, for this court has no jurisdiction of cases instituted originally in the district courts, except “appellate” jurisdiction, (Const., art. 3, § 3;) and yet all civil cases brought from the district court to the supreme court must be brought to the supreme court by petition in error. (See also § 9 of the act relating to contests of county-seat elections and other elections.) This provision of § 7 of the act relating to contests of county-seat and other elections, we think clearly applies to this class of cases; and we do not think that §556 of the civil code, as amended in 1881, was intended to have or can have the force or effect to change or modify this provision in any respect whatever; Nor can §9 of said chapter 79 have the effect to give any greater period of time within which to take appeals from the district court to the supreme court than that allowed by said §7. It will therefore be seen that by said chapter 79, we have an act of the legislature giving a right to a private person to institute certain special proceedings in the name of the state of Kansas to effect certain public matters — ■ a right not previously existing, and a right not now existing except by virtue of the provisions of said chapter 79, and an act providing that such proceedings can be removed from the district court to the supreme court only within sixty days after the rendition of the judgment of which the party appealing complains. Now if a party invokes the provisions of this act, he should certainly not repudíate a portion of its provisions. After a careful consideration of this question, it is our opinion that the motion of the defendant to dismiss this action from the supreme court must be sustained. . This action will therefore be dismissed. All the Justices concurring.	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The opinion of the court was delivered by Horton, C. J.: This action was commenced by Jacob Lynch against the Missouri Pacific railway company, before a justice of the peace of Franklin county. The bill of particulars alleged that the plaintiff, from March 1, 1881, to March 1, 1882, occupied and farmed the southwest quarter of section 33, township 18, range 21, in Franklin county, Kansas, over and upon which land the defendant during that period of time maintained and operated its railroad line; that during the spring and summer of 1881, the defendant neglected to erect and maintain a cattle-guard at the point on the east side of the premises where the defendant’s track entered and left the plaintiff’s improved land, and in conse quence of said neglect on the part of the defendant, the stock of others than the plaintiff entered upon the plaintiff’s premises, and ate and destroyed his growing crops thereon, to his damage in the sum of $300. The railway company filed its answer to the plaintiff’s bill of particulars, denying all the allegations therein, and alleging that whatever loss the plaintiff had sustained was caused by the insufficiency of his fences; that the company put in good and sufficient cattle-guards at the point where its line of railroad entered and left the improved and fenced land of the plaintiff, but that the latter after he had planted his crop removed his fence from that point to another and left his field open in many places, and by his own negligence exposed his field to stock, and by his own carelessness his crops were destroyed. The case was tried before a justice of the peace; the plaintiff recovered, and the company took an appeal to the district court. The case was tried in that court, and judgment rendered in favor of the plaintiff. The company excepted. The objections made to the rulings of the trial court are not tenable. It is insisted on the part of the railway company that as. it put in cattle-guards where the road entered and left the land of the plaintiff, as it was originally fenced, it complied fully with the requirements of the statute. (Comp. Laws of 1879, ch. 84, §§37-39.) It is further insisted that as the company had once put in cattle-guards at the points designated by the statute, it was not required to take them up and follow to such other or different place as the plaintiff afterward removed his fence to. It appears from the evidence that after the cattle-guards were first built by the company, the plaintiff tore down his fence on the east side of his inclosed land, and removed it away from the cattle-guards as then constructed about forty rods. In the first place, there was testimony before the trial court tending to show that the cattle-guards as erected were not sufficient or proper cattle-guards. Further than this, there was evidence tending to prove that before the plaintiff tore down his fence on the east side of his inclosed land and removed the same to another point, he saw the road master of the railway company and made an agreement with him that the company would erect a cattle-guard at the place where the fence was to be rebuilt. This the company failed to do within a reasonable time. Therefore, the railway company was liable for all damages sustained by the plaintiff by its negligence in the premises. The judgment of the district court must therefore, be affirmed. All the Justices concurring.	[ -80, 124, -76, -113, -118, 104, -88, -103, 113, -93, -92, 83, -55, -102, -112, 57, -22, 29, 84, 41, -60, -105, 71, -29, 18, -13, -13, -51, -69, 88, 100, -58, 73, 0, 74, 85, -26, -56, -63, 92, -114, 36, -87, -23, -103, 8, 60, 122, 22, 94, 49, -65, -13, 42, 24, -61, 13, 44, 107, 45, -111, -7, -70, 86, 127, 18, 19, 6, -100, 7, -56, 58, -112, 53, 21, -24, 115, -96, -122, -12, 69, -71, 8, 102, 99, 33, 60, -113, 108, -120, 47, -5, -115, -25, -128, 24, 35, 4, -98, -99, 85, 86, -121, -4, -28, 5, 92, 92, 1, -53, -80, 23, -97, 52, -110, 95, -21, -81, 33, 101, -59, -94, 95, 71, 122, -101, -113, -99 ]
The opinion of the court was delivered by Harman, C.: Two separate issues are presented in this appeal in a workmen’s compensation proceeding. The first is the familiar question of the relationhip between the workman and the respondent at the time of the former’s fatal injury —Was the workman respondent’s employee, or was he an independent contractor? The second issue, if the death be found to be compensable, involves the effect of judicial termination of parental rights upon a minor child’s entitlement to compensation, and is one of first impression. Linda Kannard Roelfs, who was married to the workman Jack Anthony Kannard at the time of his death and who remained his widow and unmarried for a period of sixty-four weeks thereafter, prosecutes the claim in her own behalf and for their minor daughter, Mary Anne Kannard. The state department of social welfare has appeared throughout the proceedings in behalf of the minor child but filed no brief in this court in support of its position. The trial court made an award of compensation in the maximum statutory amount, payable during the first sixty-four weeks in equal proportion between the widow and the minor child, and thereafter to the minor child until fully paid. Respondent Sam Wallingford, Inc., and its insurance carrier have appealed. We deal first with the relationship between the deceased workman and the respondent. All the fact-finders (examiner, director and trial court) found that on April 6, 1966, the date of Kannards injury and death, he was respondent’s employee and not an independent contractor. Appellants contend there was no substantial evidence to support that finding. We cannot agree. Appellants’ contention is largely bottomed on the fact the deceased workmans father made certain statements in a deposition which were inconsistent with his later testimony before the examiner. Upon appeal we are not concerned with such matters, resolution of which lies within the province of the trier of the fact upon consideration of all the evidence. Briefly stated, the evidence in support of the trial court’s finding reveals the following. Jack Kannard and his father orally agreed to construct a dump or boat pit at the' grain elevator owned and operated by appellant Wallingford at Coldwater, Kansas, and had commenced such undertaking. On April 6, 1966, in the progress of this work, while the two Kannards and others were removing a large concrete block by means of a caterpillar tractor, a cable attached to the block broke and struck Jack Kannard, causing his immediate death. During the course of the project each of the two Kannards had kept his own time and each was paid weekly by Wallingford at the rate of $3.90 per hour. They were under the supervision and control of an officer of the Wallingford company, Paul Wallingford, who gave directions and instructions as to what was to be done, and who had the light to “fire” either at any time. After the fatal incident the senior Kannard never completed the contemplated project. The Wallingford company paid for all material and for rental of equipment used in the job and paid also for the services of another man who assisted the Kannards in their work at the elevator. The company often performed repair and remodeling work on its elevators by using its own maintenance crew. The foregoing evidence amply supports the finding that the decedent was an employee of appellant Wallingford at the time of his death. Rules respecting this aspect are well established (Watson v. Dickey Clay Mfg. Co., 202 Kan. 366, 450 P. 2d 10) and further iteration could add nothing to the body of our law. Determination of this issue establishes entitlement of appellee Linda Kannard Roelfs to compensation for herself during the period following her husband’s death she remained -unmarried. Appellants further contend the minor child, Mary Ann Kannard, was not a dependent of the workman at the time of his death within the meaning of the Kansas workmen’s compensation act and therefore is not entitled to compensation. Further facts must be stated upon this point. The decedent Jack Kannard and his wife Linda were married on June 1, 1965. Their child, Mary Anne, was born October 11, 1965, at a hospital in Atchison, Kansas. The child was born blind. Immediately after birth her parents turned her over to the Atchison county social welfare department. Neither parent ever saw her and neither had contributed anything toward her support up to the time of the father’s death on April 6, 1966. On November 10, 1965. the juvenile court of Atchison county, Kansas, declared Mary Anne Kannard to be a dependent and neglected child within the meaning of the juvenile code and, pursuant to K. S. A. 38-824 (c), as amended, found her parents to be unfit persons to have her custody and permanently deprived them of their parental rights in Mary Anne. The court committed the child to the state department of social welfare. No question has been raised respecting the propriety of that proceeding. We quote further excerpts from the testimony of appellee respecting the disposal of the child: “Q. Well, can you tell us why you were so disinterested in the child that you never saw it and you gave up its custody? “A. Well, it wasn’t my idea in the first place. Before we got married we had decided that. I agreed to it because I was in love with my husband and I wanted our own life without any trouble. “Q. (By Mr. Brainerd) Now, the ‘we’ you have reference to is Jack and you, is that correct? “A. Yes. “Q. And am I to understand that this child was conceived before your marriage to Jack? “A. Yes. “Q. Was he the father of the child? “A. He was. “Q. And so before — If I understand you correctly, it was before the child was born he had prevailed upon you to give up the custody, possession and custody of the child when it was born, is that correct? “A. Yes. “Q. Was your husband employed on October 11, 1965, when the child was born? “A. Yes. “Q. And did he continue to be employed from that date until the date of his death, April 6, 1966? “A. Not every day. “Q. Well, generally he was employed and had an income from his work, is that correct? “A. Yes. “Q. During that period of time between October 11, 1965, and April 6, 1966, did your husband ever contribute anything toward the support or maintenance of this child? “A. No. “Q. Did you ever contribute anything towards the support and maintenance of this child between the date of its birth and April 6, 1966? “A. No. “Q. Did you provide for it in any fashion, whether by cash or clothes or gifts or anything? “A. We paid hospital bills to get me out of the hospital. “Q. No, my question was limited to the child. “A. No. “Q. Have you ever made any efEort to see the child? “A. Well, it was my understanding that I couldn’t.” Upon oral argument we were told the child has never been adopted but has been cared for in a private foster home at state social welfare department expense. Our workmen’s compensation act provides the following definition: “ ‘Dependents’ means such members of the workman’s family as were wholly or in part dependent upon the workman at the time of the accident. ‘Members of a family,’ for the purpose of this act, means only legal widow or husband, as the case may be, and children; . . .” (K. S. A. 44-508[j], as amended.) The workmens compensation law in effect at the time of the workman’s death provided: “The amount of compensation under this act shall be: “(2) Where death results from the injury, (a) If a workman leaves any dependents wholly dependent upon his earnings, a sum equal to three (3) times his average yearly earnings, computed as provided in section 44-511 of the General Statutes Supplement of 1961 and any amendments thereto, but not exceeding fifteen thousand dollars ($15,000) and not less than two thousand five hundred dollars ($2,500): . . .” (K. S. A. 44-510.) Our opinions construing the foregoing provisions, in cases where there has been a legal obligation on the part of a workman to support his child, establish the rule that whether a claimant in a workmen s compensation proceeding is a dependent of a deceased workman is a question of fact and such dependency is to be determined as of the date of the accident. They are in accord with the rule generally that proof of bare legal obligation to support, unaccompanied by either actual support by the decedent or reasonable expectation of support, is ordinarily not enough to satisfy the requirement of actual dependency (see Richardson v. Robert Drummond Trucking, 204 Kan. 385, 461 P. 2d 754; also 2 Larson's Workmens Compensation Law, § 63). However, we have no precedent of our own, and find little elsewhere, as to the effect of judicial termination of parental rights upon a child’s entitlement to workmen’s compensation benefits. Our statute providing for termination of parental rights was initially enacted in 1957 as a part of a then new and comprehensive juvenile code (now K. S. A. Chap. 38, Art. 8, as amended). It provides: “(a) The provisions of this section shall apply to any child under the age of sixteen (16) years found to be dependent and neglected, within the meaning of this act, either at the initial hearing or any subsequent hearing: “(b) In the absence of an order depriving parental rights, the juvenile court may make such dependent and neglected child a ward of the court and commit the child to: “(1) The custody of either or both of his parents; “(2) the care, custody and control of a probation officer duly appointed by the court, or other individual; “(3) the care of some children’s aid society; “(4) the state department of social welfare; or “(5) the county department of social welfare. “(c) When the parents, or parent in the case there is one parent only, are (or is) found and adjudged to be unfit persons (or an unfit person) to have the custody of such dependent and neglected child, K. S. A. 38-820- and other applicable provisions of this act having been fully complied with, the juvenile court may make an order permanently depriving such parents, or parent, of their (his or her) parental rights and commit the child: “(1) To the care of some reputable citizen of good moral character; “(2) to the care of some suitable public or private institution used as a home or place of detention or correction; “(3) to the care of some association willing to receive it, embracing in its objects the purpose of caring for or obtaining homes for dependent and neglected children; “(4) to the state department of social welfare. “(d) In any case where the juvenile court shall award a child to the care of an individual or association, in accordance with clause (1) or (3) of subsection (c) of this section, the child shall, unless otherwise ordered, become a ward of, and be subject to the guardianship of the individual or association to whose care it is committed. Such individual or association shall have authority to place such child in a family home, give consent for the adoption of such child, and be party to proceedings for the legal adoption of the child, and such consent shall be the only consent required to authorize the probate court to enter proper order or decree of adoption. In any case where the juvenile court shall award a child to the care of the state department of social welfare, in accordance with clause (4) of subsection (b) and (c) of this section, said state board of social welfare shall be the guardian of the person and the estate of said child and shall be empowered to place such child for adoption and given consent therefor, if received in accordance with clause (4) of subsection (c), or to make transfer of such child as provided for by K. S. A. 38-825. In any such case, upon the filing of the application provided for in section 9 [59-3009] of the act entitled ‘act for obtaining a guardian or conservator, or both’ by the state board of social welfare, the court shall forthwith appoint the state board of social welfare the ‘conservator’ of such child. . . .” (K. S. A. 1970 Supp. 38-824.) Other sections of the act establish procedures to be followed and provide for payment of the expense of care and custody of children in certain situations. The statutes relied upon by the trial court in support of its conclusion that the deceased workman remained obligated for the support of Mary Anne Kannard at the time of his death, and the only authority cited to us by appellee and by the state department of social welfare upon oral argument, are K. S. A. 38-823, 38-827 and 38-828. Reliance is placed upon a single paragraph at the end of each which states: “Nothing in this section [act] shall be construed to mean that any person shall be relieved of his legal responsibility to support a child.” Certainly this negative phrase imposes no obligation of any kind upon any one. To the contrary, close analysis of the entire contents of the three cited statutes in connection with K. S. A. 1970 Supp. 38-824 leads to the conclusion no obligation of support was intended where parental rights are terminated. K. S. A. 38-823 makes provision for payment from county funds of the expense of the temporary care and custody of a child once a petition alleging its dependency and neglect has been filed in juvenile court and pending a final determination. Likewise 38-827 makes provision for county payment, of the expense of care and custody of a dependent and neglected child who has been committed under clauses (2) and (3) of subsection (b) of 38-824. Noteworthy is the fact subsection (b) is expressly applicable only in situations where there has been no order depriving the parent of parental rights. In the case at bar action was taken under subsection (c). Then 38-828 provides that when, under the provisions of either 38-823 or 38-827, expenses have been paid out of county funds for child care, a parent may be required to make reimbursement to the county of all or any part of such payment. The section further prescribes procedure for enforcing such responsibility. Consideration of these interrelated statutes indicates legislative intent that once an order is made in the strong language of 38-824 (c) permanently depriving a parent of parental rights there remains no legal obligation of support. We think this is in accord with the general tenor and purpose of the entire act. The rights and duties or obligations arising from the relationship of parent and child are generally held to be reciprocal (67 C. J. S., Parent and Child, § 2B). In Anguis v. Superior Court, 6 Ariz. App. 68, 429 P. 2d 702, the court was concerned with the nature of parental rights which could be permanently terminated by a juvenile court. After acknowledging that an Arizona statute provides every child is entitled to support from its natural parents, the court stated: “. . . we construe the term ‘parental rights’ in the broader term as the sum total of the rights of the parent or parents in and to the child as well as the rights of the child in and to the parent or parents. In other words, we construe parental rights to include both parental rights and obligations.” (p. 71.) K. S. A. 1970 Supp. 38-824 recognizes two distinct proceedings affecting the parent-child relationship in dealing with children who have been declared to be dependent and neglected. Under subsection (b) the parent may be deprived of custody and guardianship but certain residual rights and obligations remain which may pose legal or sociological problems with respect to the child’s future welfare, and, indeed, under K. S. A. 38-829 such order remains in certain instances subject to revocation as the best interests of the child may require. On the other hand, subsection (c) appears intended as a complete termination of all parental rights, this action to be taken only after the additional finding of parental unfitness (see In re Armentrout, 207 Kan. 366, 485 P. 2d 183). As such it was not primarily designed to deal with problems of immediate or temporary custody or supervision but rather to look to a final and permanent settlement of all problems of custody and supervision by a complete and final divestment of all legal rights, privileges, duties, and obligations of the parent and child with respect to each other, and by replacement of the natural parent by another guardian or adoptive parent (see U. S. Department of Health, Education and Welfare, Social Security Admin., Children's Bureau Publication No. 394-1961, “Legislative guides for the termination of parental rights and responsibilities and the adoption of children,” pp. 2-4, 9-10, 19-20). Accordingly, we hold that deprivation of parental rights in a child pursuant to K. S. A. 1970 Supp. 38-824 (c) terminates the parental obligation of support, and, within the meaning of the workmen’s compensation act, a child is no longer a dependent of a workman whose parental rights have been terminated, and such child is not entitled to workmen’s compensation benefits upon the workman’s death. The trial court correctly awarded compensation to appellee Linda Kannard Roelfs personally for a period of sixty-four weeks. Such award, however, is not subject to apportionment and as thus modified that part of the judgment is affirmed. That part of the judgment awarding compensation to or on behalf of the minor child is reversed. APPROVED BY THE COURT.	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The opinion of the court was delivered by Schroeder, J.: This is an appeal in a criminal action prior to the advent of the new rules of criminal procedure wherein the appellant was charged with second degree burglary and grand larceny (K. S. A. 21-520 and 21-524) as authorized by K. S. A. 62-1016, for counseling, aiding and abetting in the commission of such ofFenses. He was tried before a jury and found guilty. At the motion for a new trial the court set aside the appellant’s conviction for possession of burglary tools for which he was also tried. The appellant specifies as errors the sufficiency of the evidence to support the conviction, the refusal to admit deposition testimony, the quashing of notice and subpoena issued to take depositions, and instructions given to the jury. Prior to the trial the parties entered into a signed written stipulation which was submitted to the jury as instruction No. 2. It reads: “Ladies and Gentlemen of the Jury, in the ordinary criminal proceeding there are necessarily two things that the plaintiff, State of Kansas, must prove. First, the State must prove that the crimes which they have charged were in fact committed. Secondly, the State must prove beyond a reasonable doubt that the defendant was the actual perpetrator of the crimes or that he counseled, aided or abetted those who were the principal perpetrators of the crimes. “In this particular case, the defendant, Michael Lynn Goodman, and his attorneys, are admitting that the crimes charged did in fact take place. That is, the defendant admits that on or about the 16th day of February, 1969, in Johnson County, Kansas, certain parties did then and there unlawfully, willfully, feloniously and burglariously break into and enter, in the nighttime, the Perrin’s Jewehy Shop, said shop being within a building owned by Mrs. W. D. Fleming, with intent to commit a larceny, and in which shop there was at the time valuable things kept and deposited, and they did then and there unlawfully, willfully and feloniously steal, take and carry away three sample cases of diamonds and other valuable gems worth and of the value of approximately $25,000 in United States money, and said property being the property of another, to-wit: Ed Cain and Company, and said value being in excess of $50, contrary to the form of the statutes in such case made and provided and against the peace and dignity of the State of Kansas. Furthermore, the defendant and his attorneys admit that on the same date, certain parties did then and there unlawfully, willfully and feloniously have in their possession certain burglary instruments that are commonly used for breaking into stores, warehouses and dwelling houses, said burglary instruments consisting of the following: one number 10 sledge hammer, two screwdrivers, one hatchet, two pry bars, one pinch bar and one set of walkie-talkies, with an intent to employ said instruments in burglarious activity, contrary to the form of the statutes in such case made and provided, and against the peace and dignity of the State of Kansas. The crimes which you have just had described to you consist of second degree burglary, grand larceny and the felonious possession of burglary tools. These are three separate and distinct felony charges. “Again, and to be perfectly clear, the defendant is conceding that those crimes did in fact take place. On the other hand, the defendant does not admit his participation in those crimes, and he has entered his plea of not guilty to said crimes. The practical effect of the defendant’s stipulation that the crimes did in fact take place means that the plaintiff, State of Kansas, will not have to present evidence to you and the Court bearing on whether or not the crimes actually happened. “Therefore, you are instructed as a matter of law that the crimes charged in the Information did in fact occur as alleged in said Information. Moreover, you will take as true the following facts: “On the evening of February 16, 1969, a Sunday night, a man named Joseph Sprofera climbed to the top of a one-story building located in the 7300 block of West 80th Street in Overland Park, Kansas. Sprofera had with him the tools described to you earlier. After reaching the roof of the one-story building, Sprofera approached a window on a two-story building which was immediately adjacent to the roof of the one-story building. The two-story building described is owned by Mrs. W. D. Fleming. Sprofera opened said window and entered into the two-story building. The room which he entered was an office leased by the Johnson County Democratic Party. Sprofera then tore loose the flooring and created a hole large enough for a man to pass through to the store directly below the office space leased by the Democratic Party. Sprofera lowered himself through said hole and entered into the store right below him which is known as Bea’s Sample Shop. From that point, Sprofera approached the west wall of Bea’s Sample Shop. Sprofera proceeded to remove some wood paneling to the wall, and then broke open a large hole through that wall to the next adjoining shop which was Perrin’s Jewelry Store. Sprofera proceeded through that hole and did emerge into Perrin’s Jewelry Store. Sprofera then proceeded to a part of the store where three jewelry cases were being kept. These jewelry cases were the property of Ed Cain and Company of Chicago, Illinois. The rightful possessor of these cases was one William Merkel, a salesman for Ed Cain and Company. The cases were full of diamond rings and other gems. The cases were used by salesman Merkel to demonstrate to potential buyers the jewelry line of Ed Cain and Company. However, on week-ends, Merkel stored these cases at Mr. Perrin’s jewelry store. The market value of the jewelry was $25,000. Sporfera stole the three jewelry cases and departed from the store through a back door which led to an alley. Sprofera was met in the alley by one William Kirkpatrick who picked up Sprofera in a 1968 Chevrolet automobile. The two men then proceeded in the car a short distance when they were apprehended by agents of the Federal Bureau of Investigation and Overland Park police officers. Both men are now serving penitentiary sentences for their participation in these crimes. “Therefore, the sole issue to be determined by you is whether or not this defendant, Michael Lynn Goodman, was guilty of counseling, aiding, or abetting those other parties who were the actual perpetrators of the crime. You must remember that the defendant is presumed innocent until proven guilty beyond a reasonable doubt.” Michael Lynn Goodman (defendant-appellant) seriously contended at the trial that he was implicated by Allen Perrin, the owner of Perrin’s Jewelry Shop, “however, not for any part in this crime, but from the vengeance of Perrin, who had been cheated by Goodman.” The state’s evidence discloses that Allen Perrin (hereafter Perrin) was by occupation the owner of a retail jewelry store which he ran in Overland Park, Kansas. In November, 1968, the appellant became an acquaintance of Perrin. He offered to sell Perrin some jewelry but Perrin being suspicious called the F. B. I. Perrin did, however, from time to time buy jewelry and gems from Goodman. On one of his visits to the store, the appellant presented a scheme to Perrin whereby the appellant’s “boys” would steal the jewelry line of a salesman, William Merkel. Merkel stored his jewelry line in Perrin’s store on weekends. Perrin pretended to go along with the idea but informed the F. B. I. of all developments. Perrin’s communication to the F. B. I. was with an agent named Yates Webb. In the development of the plan Sprofera was brought to the store by the appellant during a Christmas Eve party given by Perrin at the jewelry store in 1968. At that time Sprofera “looked over the store.” Thereafter, the appellant introduced one Kirkpatrick to Perrin at a luncheon meeting. At such meeting further details were discussed by those parties. Perrin testified: “Q. Mr. Perrin, as a way of getting into this, I will ask you if you had any advance knowledge that these crimes were going to take place on February 16th? That is did you have any knowledge they might take place before they actually happened? “A. Yes, sir. “Q. All right. Did your acquaintanceship with any of these three men, Sprofera, Kirkpatrick or Goodman have anything to do with that knowledge? “A. Yes, sir. “Q. All right. Any particular one of them or all three of them? “A. Mike Goodman was the one that I had contact with.” Concerning the luncheon meeting at which Perrin met with Goodman and Kirkpatrick, Perrin testified: “Q. Was there any instructions given you at that luncheon or meeting by Mr. Goodman or Mr. Kirkpatrick? “A. A1 Kirkpatrick stated at the time that he could hit him outside the store and take the line there, and I wasn’t in favor of this as much, because I didn’t want any harm to come to Bill Merkel over it. So Mike Goodman stated if I would take care of the alarm system so they could come in to the store, which I agreed to do, and I shut the alarm off when they told me it was time to shut the alarm off.” After working out the details the only question remaining was when the acts would take place. The caper was finally triggered by the appellant who notified Perrin by telephone to disconnect the alarm system on the weekend of February 16, 1969. Perrin went to the store, disconnected the alarm system on the west wall and re turned home. The details of the actual crimes are set forth in the written stipulation agreement. (Instruction No. 2, supra.) The appellant contends there was no substantial competent evidence that he counseled, aided and abetted the actual perpetrators of the crime. The position taken by the appellant is that it was the appellant, and not Perrin, who had been propositioned to burglarize the jewelry line. In this connection he cites the Christmas party given by Perrin whereby Sprofera was permitted to attend and look the place over. He further relies upon the fact it was only the testimony of Perrin that linked the appellant to Sprofera and Kirkpatrick; and that there was no evidence that the F. B. I. ever observed Sprofera or Kirkpatrick with Goodman, or that any surveillance was conducted by the F. B. I. He also relies on the testimony of Perrin that the only thing the F. B. I. knew about the case was what Perrin had told them. The appellant argues: “There was absolutely no substantial competent evidence that Goodman ever counseled the principals, unless one considers Perrin as a precipitating cause, and he, of course, was not charged in the commission of a felony by voluntarily turning off the burglar alarm system of his store.” Webb, the F. B. I. agent, testified and confirmed the reports Perrin made by telephone to him concerning the progress of the planned burglary. The appellant by his own admission testified he was by occupation a hustler and cheat, dealing in anything that could be sold for a profit — that he made his living by cheating and defrauding others. Evidence offered by the defense further establishes that the appellant was acquainted with Sprofera and Kirkpatrick; that the appellant was in the company of Kirkpatrick’s wife the day after the crimes; and that he would have no moral reservations about committing these crimes, but the appellant said he did not participate because he did not trust Perrin completely. The jury simply did not believe the testimony of the appellant. Certainly, there was substantial competent evidence from which the jury could find that the appellant counseled, aided and abetted in the commission of the crimes. In fact, the evidence most favorable to the state, as we must view it on appeal, discloses the appellant engineered the crimes. The rule is stated in State v. Holle, 202 Kan. 592, 451 P. 2d 237, as follows: “An appellate court will not weigh conflicting evidence. It is the function of the trier of facts, not that of a court of appellate review, to weigh evidence and pass upon the credibility of witnesses. A verdict of guilty, when approved by the trial court, must stand if supported by substantial competent evidence. Where the sufficiency of evidence is being reviewed, the function of an appellate court is limited to ascertaining whether there was a basis for a reasonable inference of guilt. The general rule is — before a verdict approved by the trial court may be set aside on appeal for insufficiency of the evidence, it must clearly appear that on no hypothesis whatever is there sufficient substantial evidence. (See, also, State v. Scoggins, 199 Kan. 108, 427 P. 2d 603.) (pp. 593, 594.) It is to be noted that no defenses were raised relative to entrapment or “consent to enter” the jewelry store. As a possible defense, entrapment was abandoned by the defense. Any claim that the burglary did not take place because of Perrins role was likewise abandoned when the appellant entered into the written stipulation agreement which established as a matter of law that the burglary did take place. The appellant next contends the trial court erred in denying the use of Kirkpatrick’s deposition. On the 3rd day of October, 1969, a judge of the district court of Johnson County, Kansas, entered an order which authorized the taking of the deposition of a prisoner confined in the Kansas State Penitentiary named William Arthur Kirkpatrick. Pursuant to that order his deposition was taken at the state penitentiary. A representative of the county attorney’s staff was present, the deponent was placed under oath and he was subjected to cross-examination. In the deposition testimony Kirkpatrick answered only those questions he desired to answer. The effect of the deposition was to absolve Goodman of the crimes. On the morning of the trial, the appellant’s attorney announced in chambers his intention to introduce the deposition testimony of Kirkpatrick pursuant to the conditions of K. S. A. 60-226 (d) (3) (III). In support of the deposition’s introduction the appellant claimed surprise because the state was not going to produce Kirkpatrick, who had been named by the state on the information, as a witness. Kirkpatrick was in prison, but the trial court refused to admit the deposition in evidence. This point has no merit. The appellant had no right to assume the state would produce at the trial all witnesses listed on the information. If the appellant really wanted Kirkpatrick at the trial, it was his responsibility to take the proper steps to have him present, or show that his attendance could not be procured. The appellant’s attorneys were informed unconditionally when Kirkpatrick’s deposition was taken that the state did not intend to use him as a witness; hence, no surprise can be claimed. Furthermore, upon refusal to admit Kirkpatick’s deposition in evidence, the trial judge offered to issue a subpoena and have him produced upon the condition that the appellant’s attorneys prepare an order to that effect. Their failure to do so makes it obvious the appellant did not want Kirkpatrick present to testify; rather, the only desire was to present in evidence a one-sided deposition. Under these circumstances the trial court’s refusal to admit the deposition testimony of Kirkpatrick was entirely proper. Assuming, without deciding, the use of depositions at the trial in criminal cases was controlled by the new code of civil procedure (K. S. A. 60-226 [d]) prior to July 1, 1970, the appellant was not “unable to procure the attendance of the witness by subpoena.” (K. S. A. 60-226 [d] [3] [IV].) The use of depositions was formerly prescribed by G. S. 1949, 60-2819. Under this section the deposition of a prisoner could be used when he was unable to attend court. The section in the new code of civil procedure really makes little, if any, change in the Kansas law respecting the use of the deposition after it is taken. (Gard, Kansas Code of Civil Procedure Annotated, § 60-226 [d], p. 138.) The appellant specifies that the trial court erred in quashing the notice and subpoena issued to take the deposition testimony of Perrin and Webb. After the preliminary hearing counsel for the appellant made demand for a written transcript from the court reporter of the testimony of Perrin and Webb, the state’s only two witnesses who could shed any light on Goodman’s involvement. After repeated requests, it was finally disclosed the notes taken on the second day of the preliminary hearing had been lost. In the meantime, counsel for the appellant had issued a notice to take the depositions with a subpoena issued for Webb and Perrin. Upon motion of the state this was quashed by the trial court. The witnesses whom the appellant sought to depose were present at his preliminary hearing, where the attorneys for the appellant cross-examined the witnesses at length. Defense counsel had available to them also the transcripts of the same witnesses’ testimony in the Sprofera case. Furthermore, the record discloses both Webb and Perrin were called by the state and testified in person at the appellant’s trial, where counsel for the appellant cross-examined both of these witnesses upon their direct testimony and upon alleged discrepancies concerning their testimony given at the preliminary hearing. The primary point argued by counsel for the appellant concerned an alleged discrepancy by Webb, the F. B. I. agent, in his testimony. At the trial Webb testified he wrote up the results of his contact with Perrin relative to the planning of the burglary in question. When Webb was asked whether he made a report to the bureau he answered, “No. Let me — .” Apparently his answer was cut off, but it appears from the record he made no report to the bureau because no positive federal violations were indicated prior to February 15, 1969. Counsel for the appellant cross-examined Webb as follows: “Q. And did you or did you not state at that time under oath that you did not have any records concerning any of these transactions or visits? “A. I did not testify to that. “Q. That is your best recollection? “A. Yes.” James D. Howell, counsel for the appellant, at the trial took the stand and testified under oath that he made notes concerning the testimony of Webb at the preliminary hearing and recalled asking Mr. Webb about written records. He said his notes disclosed that Mr. Webb made no written file. On cross-examination, however, he testified: “Q. Mr. Howell, since you don’t recall specifically the question, I suppose it is possible that the question might have been, ‘Did you bring your written records with you to this hearing?’ “A. I wouldn’t say that couldn’t have been the question.” The appellant contends the inconsistencies and inaccuracies evident by the testimony of Perrin and Webb at the preliminary hearing which he sought to develop as a defense by further deposition inquiry based upon the recorded preliminary hearing, taken in conjunction with the announcement of the lost notes by the court reporter, so prejudiced the defense as to deny the appellant the benefit of counsel and a fair trial. On the record presented we fail to see merit in the appellant’s argument on this point. If such pretrial discovery depositions were authorized prior to the advent of the new code of criminal procedure, it is necessary to find such authorization in K. S. A. 62-1313; 62-1314; 62-1315 and 62-1426, and to construe such sections of the code of criminal procedure as having application to the new code of civil procedure which first became effective January 1, 1964. We need not, however, determine this question. Here counsel for the appellant failed to comply with the foregoing sections of the code of criminal procedure in that no application was made for a commission to examine the witnesses whose deposition testimony they sought. On somewhat different factual situations, in State v. Jeffries, 117 Kan. 742, 232 Pac. 873; and State v. Furthmyer, 128 Kan. 317, 277 Pac. 1019, the defendants argued the discovery rule in the old code of civil procedure was made applicable to criminal procedure by the adoption provision of the criminal code relating to the testimony of witnesses. (K. S. A. 62-1413.) In both cases the court summarily rejected this argument. In the Jeffries case the court held letters written by the defendant were not discoverable. In the Furthmyer case the court overruled the defendant’s pretrial motion to inspect and obtain a copy of statements made to the police by the prosecution witnesses. It is to be noted the court is not here dealing with a case of suppression of evidence. (See Brady v. Maryland, 373 U. S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194; and Miller v. Pate, 386 U. S. 1, 17 L. Ed. 2d 690, 87 S. Ct. 785.) Here the trial of the appellant’s case occurred before the new code of criminal procedure went into effect (July 1, 1970). Nonetheless, even if the trial of the appellant’s case had been governed by the new code of criminal procedure, it is abundantly clear he would not have been allowed to take the depositions in question. K. S. A. 1970 Supp. 22-3211 provides in part: “(1) If it appears that a prospective witness may be unable to attend or prevented from attending a trial or hearing, that his testimony is material and that it is necessary to take his deposition in order to prevent a failure of justice, the court at any time after the filing of an information or indictment may upon motion of a defendant and notice to the parties order that his testimony be taken by deposition. . . .” Here the prospective witnesses were present, available and did appear and testify at the appellant’s trial. Under the circumstances here presented, the appellant has failed to make it affirmatively appear he was prejudiced by the order of the trial court sustaining the state’s motion to quash the appellant’s notice and subpoena issued to take the depositions of Perrin and Webb. Lastly, the appellant contends the trial court erred in charging the jury on the law of aiding and abetting by instruction No. 10. At the trial prior to the opening statement of counsel for the respective parties the trial court fully instructed the jury on the law of the case. It again instructed the jury giving the same instructions, with four additional, at the close of all the evidence in the case. The aiding and abetting instruction, although numbered differently, was identical in each set of instructions. This instruction reads: “Any person who counsels, aids or abets in the commission of any offense may be charged, tried and convicted in the same manner as if he were a principal. “As used in the above sentence the words hereinafter set out have the following meaning: “A principal is a person who directly commits the act or acts constituting an offense. “Counsel means to recommend or advise another in the commission of an offense. “Aids means to help or give support to. “Abets means to encourage the commission of an offense.” (Emphasis added.) While it is unorthodox to instruct a jury in a criminal case prior to the opening statements of the respective counsel, appellant’s counsel did not object to this procedure in the instant case. In view of instruction No. 2, necessitated by reason of the parties’ stipulation, the instructions were given prior to the opening statements of counsel. The only objection made by counsel for the appellant to the giving of instructions prior to the opening statements was that at that time there was no evidence before the court concerning counseling, aiding or abetting. We fail to see any merit in this objection because the agreement set forth in instruction No. 2 specifically stated the sole issue to be determined by the jury in the trial of a case was whether or not the defendant was guilty of counseling, aiding or abetting those other parties who were the actual perpetrators of the crime. The thrust of the appellant’s specific objection on appeal to the “counseling, aiding and abetting” instruction is that the instruction does not define the word “another,” heretofore emphasized. No such objection was made at the trial. At two other places in the court’s instructions the word “another” was specifically defined to be the actual perpetrators of the crime. It appears in both the first and the last paragraphs of instruction No. 2; thus, the jury was informed the term “another” meant the actual perpetrators of the crime. The appellant has failed to make it affirmatively appear he was prejudiced by the instructions given in the trial of this case. Accordingly, the judgment of the lower court is affirmed.	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The opinion of the court was delivered by O’Connor, J.: This is an interlocutory appeal by the state pursuant to K. S. A. 1970 Supp. 22-3603 from an order of the district court sustaining defendant’s motion to suppress evidence. On October 10, 1969, the Dickinson county sheriff’s office was advised that an unoccupied farmhouse owned by Clara Popejoy had been burglarized and numerous antique items were missing therefrom. The house was located three miles south and two miles east of Chapman. The investigating officers learned that on the evening of October 9 a farmer had observed a “champagne-gold colored,” new model Chevrolet bearing a New Jersey license plate HAK 674 on the road near the Popejoy farm. Officials in New Jersey were contacted and it was learned the license had been issued to Ray’s Body Shop of Butler, New Jersey, for a 1949 Plymouth automobile. The owner of the body shop reported the tag was missing, and that one Michael Voit (the defendant herein), who was believed to be residing at Route 1, Chapman, was suspected of having taken it. According to the shop owner, Voit had formerly been stationed at Fort Riley, and had married a girl from the Chapman-Abilene area. Upon further investigation, the Dickinson county authorities ascertained that Voit and his wife were living in a farmhouse located approximately one mile west and three-fourths of a mile north of the Popejoy house. At about 7:45 p. m. on October 10, the sheriff, his deputy, and the county attorney went to the Voit home where they observed a tan Camaro automobile with New Jersey license HAK 674 parked in the yard. They went to the back door where they were met by Mrs. Voit. The three introduced themselves and asked her who owned the Camaro with the New Jersey tag. She replied that the car belonged to her husband. Voit then came to the door and the law enforcement officials, after identifying themselves, inquired of him about ownership of the automobile. When Voit told them he was the owner, they asked to see the registration papers for the vehicle. Voit began searching through his wallet and said, “Why don’t you come in the house, it’s pretty cold out here; I think the papers are in the house.” As the three officials followed Mr. and Mrs. Voit into the kitchen, they passed through a back porch where they observed various items which matched the description of property missing from the Popejoy farmhouse. After entering the kitchen, Mr. and Mrs. Voit located a registration receipt for a Kansas license issued to the Camaro, but were unable to produce any registration papers pertaining to the New Jersey license plate. Finally, Voit said the tag did not belong to the vehicle. Thereupon, Voit, after being advised by the county attorney of his rights under Miranda, stated the New Jersey license belonged on a pick-up which he had brought from New Jersey and he was merely using the tag on the newly-acquired Camaro until he could get a Kansas license. Voit was given a second Miranda warning by the deputy sheriff and was informed that the officials wished to question him about the Popejoy burglary and larceny which occurred the night before. At this point the officials recog nized other items in the kitchen matching the description of those taken from the Popejoy house. In response to questioning, Voit denied he had ever been in the burglarized house, but did state that on the evening before he had been rabbit hunting with a friend known only as Jim when they found the various items of property in a ditch alongside the road. The officials advised Voit they believed tibe property was that stolen from the Popejoy house and asked if there were other articles in the Voit home which had been found at the same time. Several more items were produced, and with the Voits’ consent, all the property was placed in the patrol car. Voit, being unable to explain exactly where he had found the property, volunteered to accompany the officials and point out the location. He directed them to a roadside ditch near the Popejoy house. Again, Voit denied having been inside the house, whereupon the deputy sheriff asked him if the fingerprints that were found on the floor in the upstairs southeast room by the window left by someone getting on his hands to look out the shade would be his if they were compared. Voit reflected for a moment and said, “I might as well tell you about it.” He proceeded to give a full account of his part in the burglary and larceny. The party returned to Voit’s residence where he produced two more items of property not previously revealed to the officials. At this time Voit was placed under arrest. Based on the foregoing evidence elicited from the sheriff and his deputy, the district court ordered suppression of the articles of personal property seized by the officials and of all testimony concerning defendant’s oral admissions. The theory of the trial court in taking such action is not disclosed in the record. Defendant vigorously contends the property seized was inadmissible for the reason that the law enforcement officials gained entrance to the Voit premises by ruse or subterfuge of investigating a possible misdemeanor, when actually they were searching for evidence from a suspected burglary. Defendant concedes the authorities were lawfully on the premises for the purpose of investigating the license violation, but he maintains the legality of their presence ceased before they were invited into the residence, thus making their entry illegal ab initio and the subsequent search unlawful. The state, on the other hand, makes no attempt to justify seizure of the property on the basis of a search incidental to a lawful arrest or on the ground the authorities had probable cause to search for contraband. Rather, the claim is made the officials were lawfully on the premises, and upon entering defendant’s home at his invitation, saw the fruits of the burglary in plain view, thus giving them the right to seize the stolen articles. We believe the state’s position is sound and the district court erred in sustaining the motion to suppress. When the officials arrived at the Voit residence they found a car of similar description with the same New Jersey license as had been seen near the Popejoy farmhouse on the evening before. They had information the license plate had been stolen or was missing from the rightful owner in New Jersey. The officials were in the process of making a good-faith effort to check the license plate and registration of the vehicle. This part of their investigation was part and parcel of their overall investigation of the burglary and larceny. They had good reason to believe there was a possible connection between the two. In conducting their investigation it was reasonable for the officials to ask the defendant to produce registration papers showing the license was issued for the Camaro which he acknowledged belonged to him. Their entry into the house at defendant’s request in no way detracted from the lawfulness of their presence on the premises initially. The fruits of the burglary were there in plain view for anyone to see. No search in fact occurred. A police officer lawfully on the premises or in a public place can always seize objects which are open to his view if he has reasonable cause to believe they are the fruits of a crime. The eye cannot commit a trespass condemned by the federal and state Constitutions, and mere observation of that which may readily be seen does not constitute a search. (State v. Frizzell, 207 Kan. 393, 485 P. 2d 160; State v. McMillin, 206 Kan. 3, 476 P. 2d 612; State v. Yates, 202 Kan. 406, 449 P. 2d 575, cert. denied, 396 U. S. 996, 24 L. Ed. 2d 461, 90 S. Ct. 496; State v. Blood, 190 Kan. 812, 378 P. 2d 548; Garcia v. Baker, 421 F. 2d 671 [10th Cir. 1970].) In Harris v. United States, 390 U. S. 234, 19 L. Ed. 2d 1067, 88 S. Ct. 992, the court stated: “. . . It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.” (p. 236.) Defendant relies on cases from other jurisdictions holding that when it appears the search was the real object of the officers entering upon the premises and the arrest was only a sham or a front being used as an excuse for making the search, the arrest itself and the ensuing search are illegal. (Taglavore v. United States, 291 F. 2d 262, [9th Cir. 1961]; McKnight v. United States, 183 F. 2d 977, [D. C. Cir. 1950].) These decisions are not in point, for here there was no evidence of an arrest being used as a pretext to search the premises for fruits of a crime. What has been said disposes of defendant’s further contention that his oral admissions were properly suppressed because they were the product of an illegal search and seizure. Moreover, we find nothing to support the suggestion that the officers attempted to “mislead, confuse, or frighten” the defendant when they asked him about the possibility of his fingerprints being in the burglarized house. Prior to any questioning, defendant had twice been given the Miranda warning. Yet, when confronted with possible evidence against him, he proceeded to make an inculpatory statement. Under our new code of criminal procedure, when a defendant challenges the admissibility of evidence on the basis it was obtained by an unlawful search and seizure, the state has the burden of proving that the search and seizure was lawful. (K. S. A. 1970 Supp. 22-3216.) Likewise, when any confession or admission is alleged to be inadmissible, the burden rests upon the state to prove their admissibility. (K. S. A. 1970 Supp. 22-3215.) We hold that the state sustained its burden of proving the challenged evidence was admissible. The judgment is reversed and the case remanded for further proceedings consistent with the views expressed in this opinion.	[ -15, -32, -7, 62, 40, -32, 42, -72, 98, -95, 48, -45, -27, -56, 0, 43, -6, 47, 100, 121, -63, -74, 87, -94, 114, -69, -55, -51, -71, 75, 44, -11, 93, 112, -118, 93, 4, 8, -123, 92, -50, 4, -71, -46, 80, 88, 44, 57, 70, 15, -79, 30, -25, 46, 58, 79, -23, 40, -53, 45, -64, -16, -85, 87, -17, 22, -109, 4, -120, 5, -8, 43, -100, 25, 32, -8, -13, -74, -118, 116, 67, -117, 12, 38, 98, 0, 93, -21, -20, -84, 14, 115, -115, 39, 24, 73, 73, 37, -98, -97, 113, -80, 46, -4, -27, 69, 29, 96, -115, -17, -108, -111, 77, 114, 12, 8, -5, -83, 50, 113, -63, 110, 93, 84, 114, -69, -122, -79 ]
The opinion of the court was delivered by Brewer, J.: This was an action on three promissory notes; and the substantial question is, whether certain payments which were in fact made within five years prior to the commencement of the action, avoided the bar of the statute of limitations. The facts respecting such payments are these: The maker of the notes, after their execution, made an assignment to one A. M. Crocket, for the benefit of his creditors. These notes were scheduled in said assignment; the assignee discharged the duties of the assignment, and out of the proceeds of the assigned property made these payments. The assignment in terms directed the assignee to sell and apply the proceeds of the property to the payment of these and other debts. We have a statute regulating assignments for the benefit of creditors; and the proceedings under this assignment were had in conformity to the provisions of such statute. But for such payment, the notes were outlawed. Were such payments sufficient to avoid the bar of the statute? The statute (code, §24) provides that: “When any part of the principal or interest shall have been paid, ... an action may be brought in such case within the period prescribed for the same after such payment.” Whatever may be the rules elsewhere, this statute controls the matter in' this state. Here, statutes of limitation are held to be statutes of repose. (Taylor v. Miles, 5 Kas. 499; Elder v. Dyer, 26 id. 604.) Partial payments made by one debtor will not suspend the running of the statute in favor of other debtors on the same obligation. (Steele v. Souder, 20 Kas. 39.) But here the party sought to be charged is the one for whom and out of whose property the payment was made. It was made in pursuance of an express direction. So, upon the maxim Qui facit per alium, faeit per se, it would seem that this payment was within the very letter of said § 24. It is true this payment was not made at the time the authority to pay was given; but the statute makes the payment itself, and not any prior authorization or act, the date from which the limitation commences. Suppose, for instance, the debtor should send money by a friend with instructions to pay it upon his note, and in consequence of the distance which the money had to be carried, or the absence of the creditor from his ordinary place of business, or for any other reason, the payment was not in fact made for days or weeks after the money had left the debtor’s hands: the statute would date from the time the creditor received, and not from the time the debtor parted with it. The same rule holds good where the debtor intrusts to an agent any personal or real property with express instructions to sell and apply the proceeds in payment of that debt. The statute would then date from the time the agent executed his trust and handed the money to the creditor, and not from the time the debtor gave authority to his agent. Now that is precisely this case. The debtor placed property in the hands of an assignee, with instructions to sell the property and apply the proceeds in payment of these, among other, debts. He did so sell and pay. That payment was the act of the debtor, for his benefit, and out of his property. It seems to us there would be no question but for the existence of the statute concerning assignments for the benefit of creditors. That statute regulates all proceedings under such assignments; prescribes the duties of the assignee, and by placing his proceedings under control of the district court makes them at least quasi judicial. In consequence of this, it has been held that the statute, instead of the terms of the assignment, controls the acts of the assignee; that he is not technically the agent of the assignor, but the statutory trustee for both debtor and creditors. His acts in payment are not the acts of the debtor nor his agent. He represents the law in distributing the proceeds of trust property placed in his hands. In support of this, the cases of Marienthal v. Mosler, 16 Ohio St. 566; Stoddard v. Doane, 7 Gray, 387; Picket v. King, 34 Barb. 193; Roosevelt v. Mark, 6 Johns. Ch. 266, are cited. These authorities seem to be in point, and to sustain the proposition. The argument in support thereof is very fully stated in the case of 16 Ohio St., supra. It is not satisfactory to us. The assignment is the voluntary act of the assignor. The manner in which it is to be carried into effect may be prescribed by statute. But does that make the acts of the assignee done under the assignment, in the manner prescribed, any the less done by direction of the assignor? He may or may not assign. If he does, he in effect says to the assignee: Do these things in the time and way named. He practically adopts the statute as a part of his direction to his assignee. The existence of an assignee, and his power to take any action, depends in the first instance on the will of the assignor. Statutes often control the form of deeds and acknowledgments, the manner and methods of many proceedings, and when a party makes a deed, or resorts to any of these proceedings, he must follow the forms and methods prescribed. But still what is done is his act. Take the case at bar: The law concerning procedure under voluntary assignments was in force. The debtor makes an assignment. What is that but saying to the assignee: “Take possession and dispose of my property in the manner prescribed by that statute”? Can he now say that he did not direct what should be done? More than that, the act of the assignee was not only in harmony with the provisions of the statute, but in obedience to the express direction of the assignor. In a double sense, therefore, it was his act. It must be remem bered that this was not an involuntary proceeding on the part of the debtor, and that the property was not taken by legal process, and against his will, for the satisfaction of his debts. We think, therefore, notwithstanding these opposing authorities, that when a debtor chooses to make an assignment, and when in such assignment he makes an express direction to his assignee to sell the property assigned; and apply the same in payment of certain scheduled debts, and the assignee does as directed, that payments so made are payments by the debtor within the meaning of said § 24. (See Jackson v. Fairbanks, 2 H. Black. 340; Barger v. Durvin, 22 Barb. 63.) The judgment will be affirmed.	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The opinion of the court was delivered by Schroeder, J: This is an equitable action in which members of a labor organization sought to have the district court determine that the defendant labor organization was not authorized to expel them from membership and to issue an injunction against the defendant union. The lower court found the union was without power to discipline its members by expulsion and granted the in junctive relief requested, whereupon the union has duly perfected an appeal. The facts in the case are not in dispute. The parties have entered into an extended stipulation setting forth the facts governing the case and the necessary exhibits material to the facts. The Independent Soap & Chemical Workers of Kansas City, Kansas, hereinafter referred to as the union, is an unincorporated association and a labor organization within the meaning of the Labor Management Relations Act, 1947, as amended. (29 U. S. C. A. § 152 [5].) It is not affiliated with any national or international union. It is recognized as the exclusive collective bargaining representative of a bargaining unit composed of certain employees (including the plaintiffs) of Procter & Gamble Manufacturing Company at its plant located in Kansas City, Kansas, which is engaged in an industry affecting commerce as defined in the Labor-Management Reporting and Disclosure Act of 1959. (29 U. S. C. A. § 402 [j].) At all.times material hereto the union had approximately 500 members. The union has had contracts with the company since 1937. In 1964 the parties entered into a contract which provided for reopening the contract by sixty days’ notice prior to December 29, 1967. Such notice was given by the union to the company and subsequent thereto a notice to terminate the agreement was given by the union. From December 29, 1967, up to August 2, 1970, the union and the company were unable to arrive at a new agreement. On or about July 9, 1970, certain employees of Procter & Gamble who were members of the union concertedly refused to work in protest of certain disciplinary action taken by the company, which was the subject of grievances filed by the union. On the morning of July 10, 1970, these employees congregated about the gates of the plant with picket signs and on strike signs. This picket line was not authorized at this time by the union. A majority of the employees reporting for the first shift of work on July 10, 1970, refused to cross this picket line. On July 10 and 11, 1970, the union scheduled a membership meeting for Sunday, July 12, 1970, and publicized the meeting by announcements made by radio and television media. Also, on July 10, 1970, Procter & Gamble instituted an action in the Wyandotte district court to enjoin the union from engaging in mass picketing and violence about the entrances of the plant. A temporary injunction was issued to this effect by the court, but the injunction did not enjoin the strike itself. On July 12, 1970, a union meeting was held among the members to discuss the strike action and picketing engaged in by certain of its members. At this meeting those members of the union present voted “to strike until the disciplinary action was resolved and the contract negotiations were completed.” Approximately 375 members of the union were present and voted on the question. Florence N. Cunningham, the named plaintiff, and other members in the class described in the petition, were members of the union, some having been members of the union for as long as 20 or 25 years. Some of the employees who voted to expel the plaintiffs were members of the union for 33 years. Each of the class who heard the radio or television announcements of the July 12th meeting had an opportunity to participate in the discussions and vote at this meeting. Subsequently, each member of the class knew the union had voted to strike and concertedly refused to render services. Each knew that the union had directed all members not to work. Between July 12, 1970, and August 2, 1970, the union was on strike. The union placed pickets at employee entrances to the plant. On August 2, 1970, the union membership called to a meeting pursuant to written mail notices, voted to terminate the strike and the strike was terminated. At this time the terms of a new contract which had tentatively been agreed upon by Procter & Gamble and the union were ratified by the membership. Section III of the contract pertaining to union membership and collection of dues reads in part: “1. Any employee who is, or becomes, a member of the Union by signing an authorization card may at his own discretion remain a member in good standing during the life of this Agreement. In case of illness or disability or leave of absence due to lack of work dues will be waived until the employee returns to work.” Neither the new contract nor the prior contract entered into in 1964 contained any provision for union security; that is, no employee was required as a condition of employment to become a member of the union. Between July 12 and August 2, 1970, and while pickets were placed at the entrances to the plant, and the strike was in progress, at various times and on various dates after July 12, 1970, Cunning ham and other members of the class returned to work and performed work for Procter & Gamble. On August 2, 1970, the membership of the union, at a special meeting called by mail notices, voted to direct the bargaining committee to institute proceedings against the members of the class, plaintiffs herein. On or about August 4, 1970, the union by its bargaining committee notified by certified mail Cunningham and other members of the class that each had been charged with going back to work and crossing the picket line. The notice directed them to appear before the representative body on August 15th. On August 15, 1970, the representative body met to review the charges made by the bargaining committee. There are approximately 30 members on the representative body, the plaintiff Cunningham and four other members of the class were also elected members of the representative body. Cunningham appeared in person and with counsel and other members of the class appeared by counsel only. However, counsel for Cunningham and all members of the class were denied the right to appear at the hearing. Counsel for Cunningham and other members of the class left statements with union representatives (which they refused to accept) indicating their representation of the plaintiffs and challenged the jurisdiction of the union to conduct a hearing or to impose disciplinary action. The representative body recommended that Cunningham and the other members of the class be expelled from the union and such action was taken. Statements made by other members at the August 15, 1970, meeting of the representative body indicated and disclosed that Cunningham and all except two members of the class had in fact crossed the union s picket line and gone back to work while the strike was in progress. The union maintains no retirement, death benefit, funeral benefit or similar benefit of its own, and thus the members of the class do not have any monetary rights to any funds if such eventualities should occur in the future. The constitution and bylaws of the union which are a part of the record contain no procedure for appeal of the union action; thus all internal remedies have been exhausted. This action was brought by Cunningham and others in the class in the district court of Wyandotte County where their requested relief was granted. The court held the union was not empowered, able or authorized to expel the plaintiff and other members of the class under its constitution and bylaws, and it permanently enjoined the union from interfering with, or infringing upon, tire membership right of the plaintiff and other members of the class. The union s constitution and bylaws are unique in that they do not spell out in any manner how or when one becomes a member, nor how or when a member can be expelled, except that a person who fails to pay dues for three consecutive months is deemed to be automatically expelled. The union has no initiation fee and the bylaws do not require that a person who deems himself to be a member take any oath or obligation. The appellant contends the union exists solely for purposes of representing employees who engage in collective concerted activity for their mutual aid and protection. The union’s position is that Cunningham and other members in her class are strikebreakers who sought to destroy the union in its effort to perform the only function for which it was created. NLRB v. Allis-Chalmers Mfg. Co., 388 U. S. 175, 18 L. Ed. 2d 1123, 87 S. Ct. 2001, is cited for the proposition that strikebreaking is the most serious offense a member of the union can engage in “‘for it undercuts the union’s principal weapon and defeats the economic objective for which the union exists.’” (pp. 181, 182, footnote 8.) The Allis-Chalmers case, however, does not support the appellant on the point here presented. There the union’s constitution and bylaws authorized fines and expulsion of recalcitrants, including strikebreakers. The issue there before the United States Supreme Court was whether disciplinary action by a union against strikebreakers pursuant to its constitution and bylaws was an unfair labor practice under Section 8 (b) (1) (A) of the National Labor Relations Act of engaging in conduct “to restrain or coerce” employees in the exercise of their right guaranteed by Section 7 to “refrain from” concerted activities. Section 7 of the Labor Management Relations Act, 1947, as amended, provides: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor orga nization as a condition of employment as authorized in section 158 (a) (3) of this title.” (29 U. S. C. A. § 157.) Section 8 of the National Labor Relations Act provides in part: “(b) It shall be an unfair labor practice for a labor organization or its agents— “(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 157 of this tide: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein; . . .” (29 U. S. C. A. § 158 [h] [1] [A].) (Emphasis added.) The appellees contend the issue in this case is a simple one of contract interpretation — i. e., whether the union’s constitution and bylaws give it the power to discipline them by expulsion. The trial court in its memorandum opinion on November 10, 1970, found as follows: “(1) There is no rule in the defendant’s constitution and bylaws regarding the procedure, the grounds, or the right of the union to terminate membership other than a provision (not here involved) that membership is automatically terminated if dues become more than three months in arrears; “(2) The union may not punish its members for violations of implied obligations and this Court does not recognize so-called ‘implied offenses’ and thereby rewrite the union’s constitution and bylaws; “(3) The union, in its relations with its members, is governed by its constitution and bylaws and the rights and duties of the members as between themselves and in their relationship with the union in all matters affecting internal government and the management of its affairs must be determined by the terms of such constitution and bylaws; “(4) In the absence of reasonable rules and regulations in the defendant’s constitution and bylaws, defendant has no authority or power to discipline its members by expulsion;” It is almost universally accepted that the relationship between a union and its members is a contractual one. As the source of the union’s disciplinary authority lies in the contractual relationship between the organization and its members, it is to the rules of contract law that we must turn in evaluating the union’s conduct. (See International Association of Machinists and Aerospace Workers, Local Lodge No. 504 (Arrow Development Co.) and David O’Reilly, 1970 CCH NLRB [¶ 22,260] 185 NLRB 22.) The foregoing statement of the law clearly reflects the congressional intent expressed in the Labor-Management Reporting and Disclosure Act of 1959 which says the equal rights of members of a labor organization should only be “subject to reasonable rules and regulations in such organization’s constitution and bylaws.” (29 U.S.C.A. § 411 [a] [1].) Since this is a matter of contract law it is essentially a question of state law. To this proposition both parties accede. The Labor-Management Reporting and Disclosure Act of 1959 omits any attempt to preempt state law in this area but instead says that state remedies continue to prevail. (29 U. S. C. A. § 413.) While there is no Kansas case directly in point, this court has adopted the theory that the relationship of voluntary associations with its members is governed by contract law. It makes no difference whether the articles of agreement of the association are called a constitution, charter, bylaws or any other name. In 1950 this court in Radio Station KFH Co. v. Musicians Ass’n, Local No. 297, 169 Kan. 596, 220 P. 2d 199, discussed the contract relationship at some length as follows: “Voluntary associations have the right to make their own regulations as to admission or expulsion of members, and one who becomes a member assents, by his membership, to the constitution and rules of procedure adopted by such an association. The constitution, rules and bylaws, knowingly assented to, become in effect a civil contract between the parties whereby their rights are fixed and measured. . . .” (p. 602.) (Emphasis added.) The court went on to discuss specifically the relationship between the association and its individual members regarding its internal affairs: “. . . The constitution, rules and bylaws of a voluntary, unincorporated association constitute a ‘contract’ between the association and its members and the rights and duties of the members as between themselves and in their relation to the association in all matters affecting its internal government and the management of its affairs are measured by the terms of such constitution and bylaws. . . .” (p. 602.) Another case in accord is Porth v. Local Union 201, 171 Kan. 177, 231 P. 2d 252. Thus, the contract manifest in the constitution and bylaws governs this matter. Other states which have adopted the contract theory have essentially disposed of the question here presented in favor of the appellees. In Sweetman v. Barrows, 263 Mass. 349, 161 N. E. 272, 62 A. L. R. 311, the court found the plaintiff had been wrongfully expelled because of the absence of enabling provisions in the bylaws. The court held the member of the union “was entitled to fair treatment and could not be expelled and deprived of his membership except as authorized by the by-laws of the association.” (p. 355.) In a similar decision, Smetherham v. Laundry Workers’ Union, 44 C. A. 2d 131, 111 P. 2d 948, the California court directed reinstatement of membership and awarded damages to an employee who was improperly expelled from the union, stating: “. . . It is true that courts will not interfere with the disciplining or expelling of members of such associations where the action is taken in good faith and in accordance with its adopted laws and rules. But if the decision of the tribunal is contrary to its laws or rules, or it is not authorized by the by-laws of the association, a court may review the ruling of the board and direct the reinstatement of the member. . . .” (pp. 135, 136.) Other cases in accord are Dingwall v. Amalgamated Assn. Etc., 4 Cal. App. 565, 88 Pac. 597; and Browne v. Hibbets, 290 N. Y. 459, 49 N. E. 2d 713. The appellant in its brief says: “It must be emphasized this is not a situation where a union’s constitution specifically sets forth grounds for expulsion and the union then proceeds to expel a member for reasons not listed therein. This is a case which should be determined on equitable considerations which have been expressed in similar situations by other courts.” From this premise the appellant would imply rules for the expulsion of members in the constitution and bylaws and further confer implied disciplinary powers upon the union. It relies on Price v. N. L. R. B., 373 F. 2d 443, 447 (9th Cir. 1967), where a member sought to attack the union s position as bargaining representative, which in a very real sense was an attack on the very existence of the union. The appellant argues a strikebreaker violates a fundamental rule of unionism and can be expelled, and contends there is a fundamental right to expel a member for a substantial violation of the union’s purpose. (Citing Polin v. Kaplan, 257 N. Y. 277, 177 N. E. 833.) The appellant argues the concept that an unincorporated association has the inherent right to expel members for deliberate violations of a fundamental obligation to the association is expressed by writers on codes of parliamentary procedure. (Citing, Robert’s Rules of Order, Newly Revised, p. 543.) The most recent case of this court on the expulsion of a member from a voluntary association is Brooks v. Petroleum Club of Wichita, 207 Kan. 277, 484 P. 2d 1026. There, however, the action taken to expel the member was in substantial compliance with the bylaws of the club. The great majority of courts have refused to look beyond the union constitution and bylaws and have emphatically denied the power of the union to punish for violations of implied obligations. (Summers, Legal Limitations on Union Discipline, 64 Harv. L. Rev. 1049, 1059-1060.) In NLRB v. Allis-Chalmers Mfg. Co., supra, the United States Supreme Court said: “In addition, the judicial view current at the time § 8 (b) (1) (A) was passed was that provisions defining punishable conduct and the procedures for trial and appeal constituted part of the contract between member and union and that 'The courts’ role is but to enforce the contract.’ In Machinists v. Gonzales, 356 U. S. 617, 618, we recognized that ‘[t]his contractual conception of the relation between a member of his union widely prevails in this country. . . .’” (p. 182.) In order to determine the instant case in favor of the union it would be necessary to imply a violation of union rules and then permit the assertion of an implied power to expel members for this implied violation. Here the constitution and bylaws of the union contain no prohibition against crossing a picket line and, more significant and determinative in this case, contain no authorization for the union to expel members for any reason. In the instant case there is an additional and controlling factor why the union has no authority to expel members and deprive them of a voice in bargaining with the company, administering the contract and handling day-to-day grievances. The contract between the company and the union was ratified by the members of the union on the 2nd day of August, 1970, whereas the meeting of the representative body to expel Cunningham and other members of the class was not held until the 15th day of August, 1970. The contract between the company and the union establishes only two requirements for membership in the union: (1) the signing of an authorization card; and (2) payment of dues. If these two requirements are met (and there is no factual dispute concerning this) then continuation of membership is up to the discretion of the individual member. This agreement which the union has with the company expressly rejects any implied authority of the union to impose other requirements on membership. No implied powers exist and this provision explains why the union bylaws do not have provisions governing expulsion of members for reasons other than nonpayment of dues. The union here seeks to destroy what it expressly agreed to in the collective bargaining agreement — that the individual discretion of each member with respect to continuation of membership would be binding. The judgment of the lower court is affirmed. Fromme, J., not participating.	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The opinion of the court was delivered by Kaul, J.: Petitioner-appellant, James Leroy Paige, appeals from an adverse ruling entered in a postconviction proceeding before the district court of Leavenworth County. While serving a sentence for grand larceny of an automobile imposed in 1958, petitioner, on December 22, 1959, walked away from an outside dormitory at the Kansas State Penitentiary where he was a trusty. Petitioner was apprehended and returned to the penitentiary on August 30, 1964. On February 5, 1965, petitioner was convicted by a jury of the crime of escape without breaking under K. S. A. 21-734 [now K. S. A. 1970 Supp. 21-3809 to 3811]. Pursuant to the provisions of K. S. A. 21-107a [now K. S. A. 1970 Supp. 21-4504] and 21-734, supra, petitioner was sentenced to a term of not less than fifteen years. This sentence is attacked in these proceedings. Apparently, petitioner initiated these proceedings by an application for a writ of habeas corpus. However, petitioners action was treated as a proceeding under K. S. A. 60-1507 by the trial court and will be treated likewise in this appeal. Petitioners attack on his sentence is directed at a previous con viction in the State of Colorado, which was used as one of two previous convictions, upon which his sentence of not less than fifteen years, under 21-107a, supra, was based. Petitioner claims that he was convicted as a juvenile in the Colorado case, and thus the Colorado conviction could not serve as a prior conviction of a felony for the purpose of invoking the provisions of 21-107a. The trial court summarily denied relief to petitioner and this appeal was perfected. In its brief on appeal and on oral argument before this court, the state now concedes that in the Colorado case petitioner was found to be a juvenile delinquent and sentenced as such to an indeterminate sentence in the Colorado State Reformatory. We have examined the proceedings pertaining to petitioner in the County Court of Yuma County Colorado and pertinent statutes relating thereto (C. R. S. 1963, 37-7-1 to 37-7-6). We agree with the position of petitioner, which is now conceded by the state, to be correct. Under our holding in State v. Fountaine, 196 Kan. 638, 414 P. 2d 75, an adjudication of delinquency against a juvenile does not constitute a conviction of a felony within the purview of the Habitual Criminal Act, and such an adjudication may not be used as a basis for enhancing the punishment imposed against an accused. Accordingly, this case is remanded with directions that the sentence be vacated and set aside, and that petitioner be resentenced in harmony with the views expressed in this opinion. The judgment is reversed with directions.	[ -48, -24, -7, 60, 27, 96, 43, 24, 99, -9, 36, 83, -87, -54, 4, 121, 91, 47, 85, 120, -52, -74, 87, -63, -26, -5, 89, 85, -77, 89, -20, -12, 74, -48, -118, 85, 102, -56, 103, 92, -114, 4, -103, -47, 81, 2, 52, 106, 50, 14, -15, -98, -13, 42, 26, -38, 73, 40, 75, -81, 88, -71, -85, 21, -4, 20, -93, -124, -108, -123, 84, 39, -36, 25, 16, -24, 51, 38, -122, -12, 103, -117, -124, 102, 98, 33, 93, -57, -88, -127, 14, -77, -115, -25, -112, 88, 99, 45, -100, -35, 121, 52, 42, -2, -25, 4, 85, -84, -127, -49, -72, -109, 77, 48, -122, -103, -21, -91, -80, 112, -122, -26, 92, 87, 115, -97, -82, -16 ]
The opinion of the court was delivered by Hatcher, C.: The petitioner has appealed from an order in a proceeding under the provisions of K. S. A. 60-1507 denying a motion to vacate a judgment and sentence rendered after a conviction of burglary in the second degree and larceny. Appellant’s sole contention is that the prosecuting attorney’s remarks to the jury in his closing argument were prejudicial and in violation of K. S. A. 62-1420. A similar question was raised in the original appeal from the conviction, judgment and sentence. In that case (State v. Neil, 203 Kan. 473, 454 P. 2d 136.) we stated at page 476 of the opinion: “Finally, the defendant asserts that prejudicial error was injected into the case through remarks of the county attorney in final argument to the effect that the defendant had not explained why he was in front of the McClure building. This contention must be rejected for several reasons. First, the closing arguments were not taken at the trial and the state categorically denies that such a statement was ever made. As a consequence, the alleged statement has not been preserved in the record and is not before us for consideration. (State v. Schroeder, 103 Kan. 770, 771, 176 Pac. 659; State v. Smith, 171 Kan. 722, 725, 237 P. 2d 388.) Second, the record does not disclose that any objection was made to the alleged improper remarks. (State v. Fadler, 126 Kan. 664, 271 Pac. 283; State v. Wyman, 198 Kan. 666, 426 P. 2d 26.) In the third place, even though the remarks were made, we would be unable to say that they had prejudiced any substantial rights of the defendant. . . .” After re-examining the record, we are of the same opinion. However, this proceeding is without merit for an additional reason. This court has adhered to die rule that a proceeding under K. S. A. 60-1507 cannot be used as a vehicle for a second appeal. In Cox v. State, 200 Kan. 198, 201, 434 P. 2d 843, it is stated: “. . . Some degree of finality should be achieved so that endless piecemeal litigation will not interfere with the timely dispatch of all the business of the courts. Recognition of the doctrine of abuse of remedy has been given the federal counterpart of our post conviction remedy (Sanders v. United States, 373 U. S. 1, 10 L. ed. 2d 148, 83 S. Ct. 1068; see also Smith v. State, 195 Kan. 745, 408 P. 2d 647).” In Cantrell v. State, 206 Kan. 323, 478 P. 2d 192, it was held: “A proceeding pursuant to the provisions of K. S. A. 60-1507 cannot ordinarily be used as a substitute for a second appeal from a conviction.” (Syl. ¶ 2.) The judgment is affirmed. APPROVED BY THE COURT.	[ -48, -22, -103, 31, -117, 96, 42, 76, 97, -93, 34, 83, 101, -49, 5, 123, -5, 63, 85, 105, -34, -73, 87, -31, -10, -14, -46, -43, -69, -33, -12, 60, 76, 96, -62, -11, 6, -54, 5, 84, -114, 7, -104, -47, -62, -118, 52, 122, 20, 3, -107, -34, -13, 43, 26, -61, -119, 40, -117, 61, 96, -112, -97, 13, 95, 20, -77, 6, -98, -121, 80, 46, -104, 57, 1, -20, 115, -90, -122, 117, 111, 11, -92, 110, 98, 33, 25, -21, -88, -71, 14, 23, -115, -89, -104, 8, 67, 13, -106, -99, 117, 52, 6, -8, -25, 4, 29, -20, 11, -113, -16, -79, 9, 125, 18, -40, -5, -127, 1, 49, -49, -32, 92, -57, 49, -5, -82, -76 ]
The opinion of the court was delivered by Price, C. J.: Plaintiff brought this action to recover damages in the amount of $200,000 for the alleged alienation of his wife’s affections. The case was tried by the court without a jury. Defendant has appealed from a $50,000 judgment. Highly summarized, the background of the matter is substantially as follows: Plaintiff, Leronzo LaFayette Wilson, a negro, was a member of the Wichita fire department. The woman in the case — also a negro — is Evelyn Wilson. She and plaintiff were first married in 1948. They were divorced in 1953. They were remarried in 1959. Defendant, J. A. Aylward — a white man — was a wealthy Wichita businessman. In 1957 Evelyn was working as a waitress at a country club in Wichita of which defendant was a member. He was about 65 years of age, and she much younger. They were acquainted. She went to his office seeking a loan of several hundred dollars. The “loan” was made — but never repaid. At her solicitation they met at a Wichita motel on one or two occasions and indulged in sexual intercourse. This was repeated once or twice at defendant’s downtown hotel room. In the meantime, Evelyn demanded large sums of money. Defendant paid in cash. The three or four personal “meetings” were in a thirty-day period in 1957 — and, as stated— Evelyn and plaintiff were not remarried until 1959. Under threats of exposure — Evelyn continued her demands for money. On occasions she went to defendant’s office to secure it. At other times she sent some one — including her son. In a period of perhaps a year defendant paid her approximately $40,000 in cash. Her demands for money — under threats of exposure — continued — and defendant continued to pay — by checks. Up until 1967 these checks totaled approximately $65,000. During this ten-year period defendant became somewhat of a mental case — suffering from “depression and severe anxiety reactions bordering on panic”. He was hospitalized several times. Finally, through the efforts of his psychiatrist and attorneys, he stopped making payments to Evelyn in 1967 — to await “developments”. In the meantime Evelyn had been living “high”, and maintained large charge accounts at leading stores in Wichita. In February 1968 she sued plaintiff for divorce and left for California. Although following their remarriage in 1959 plaintiff and Evelyn maintained a joint checking account in a Wichita bank in which she deposited the large sums received from defendant — plaintiff claimed ignorance of the entire matter until he received an alleged anonymous telephone call late at night shortly after Evelyn left for California in which he was told of the “affair” between Evelyn and defendant. The next day he went to defendant’s office, identified himself, and demanded $40,000, telling defendant that Evelyn had left Wichita with large unpaid accounts at local stores. Defendant refused, and referred plaintiff to his (defendant’s) attorney. In Evelyn’s divorce action against plaintiff, at which she did not appear in person, he was granted a divorce on his cross-petition in November 1968. This action for alienation of affections was filed in April 1968 and was tried in May 1969. Other than the oral in-court testimony of plaintiff, the evidence consisted of depositions and affidavits. In her affidavit Evelyn stated that from 1959 through 1967 she and plaintiff maintained a joint checking account in a Wichita bank; that she deposited in the account the sums of money received from defendant; that at all times plaintiff wrote checks on the account and was aware of the amount in the account and where it came from. She further stated that at no time had she ever received any money from defendant for the purpose of encouraging, inducing or enticing her to leave and divorce plaintiff, and that the grounds of her divorce action against plaintiff were based on plaintiff’s intolerable conduct toward her and their children. Plaintiff denied all knowledge of what had been going on over the ten-year period until he received the anonymous telephone call above mentioned; he was aware of Evelyn’s large expenditures during the period but assumed the money had come from her parents, and that right up until the time she sued him for divorce she had been affectionate toward him and “everything was normal”. In the course of his cross-examination the following appears in the record: “Q. In your petition for alienation of affection you have said Mr. Aylward alienated your wife’s affection — will you tell the court how he has done this? “A. Well, in two ways — I would think the fact' that he first approached her with large sums of money and she told me at first this is the only reason she started messing with him because of the money he was giving her, and second, because they had gone to bed together — he admits it, so does she. “Q. That is the land of arrangements you make with a prostitute, isn’t it? “A. Take it any way you want it — it happened. “Q. Is there any other reason that you believe Mr. Aylward alienated the affections of your wife toward you? “A. I believe he is responsible for her leaving here and leaving me.” (p. 74) The testimony of defendant’s physician-psychiatrist has been referred to. The testimony of defendant need not be detailed. In it he admitted the three or four meetings with Evelyn during the thirty-day period back in 1957; admitted the payments made over the ten-year period, and stated that all payments were the result of threats of exposure and humiliation to him and his family. In its decision the trial court — after reciting generally the facts as above related — found that plaintiff was innocent throughout the whole affair; that defendant’s conduct was wrongful and willful and in derogation of plaintiff’s marital rights; that Evelyn could not have moved herself and children to California except for the financial help furnished by defendant over the period in question, and that plaintiff had suffered loss of marital affection and companionship of his children through the wrongful influence of defendant. The court further found— “This evidence does have a bearing on the element of damage sustained by plaintiff, but when the entire case is considered the court reaches the conclusion that it was not the personal magnetism or physical attraction of the defendant but rather the money that he so generously bestowed upon Evelyn Wilson that constituted the wrongful and wilful conduct of defendant that ultimately resulted in the situation in which plaintiff now finds himself. “There is no evidence in the record and the court can find none by direct evidence or by implication that the plaintiff has been at fault or been involved in the sordid affair disclosed by the evidence. There is no evidence or implication that the wife of plaintiff voluntarily bestowed her love and affection on defendant, absent the influence of his wealth. “The court finds defendant’s conduct, as disclosed by the evidence, to be an improper, wilful and malicious influence in derogation of plaintiff’s marital rights and the .active, controlling cause of the loss sustained by plaintiff.” (p. 114) and rendered judgment for $50,000. Before discussing further the facts of this case we refer to what has been said by this court on the subject of actions for alienation of affections. In Powers v. Sumbler, 83 Kan. 1, 110 Pac. 97, it was held: “In an action by the wife against a stranger to recover damages for the alienation of the affections of her husband the corut correctly charged that in order for the plaintiff to recover it was necessary to show that it was the efforts of the defendant which were the controlling cause that destroyed the affection which the plaintiff’s husband had for her and caused their separation, and that the acts of the defendant were done knowingly and intentionally, for the purpose of alienating the husband’s affections.” (Syl. 3) “In an action by the wife against a stranger to recover for alienation of the affections of her husband an instruction which omits the qualification that the defendant must have acted knowingly and intentionally was properly refused.” (Syl. 4) In Roberts v. Dockstader, 144 Kan. 384, 61 P. 2d 114, it was said: “Actions for damages for alienation of affection and for breach of promise of marriage have become so obnoxious to the public welfare that the legislatures of some states have abolished them. The remedy for alienation still exists in this state, but only subject to the limitations stated in the case of Powers v. Sumbler, 83 Kan. 1, 110 Pac. 97. The acts of the defendant must be done knowingly and intentionally, for the purpose of alienating the husband’s affection, and must be the controlling cause of alienation.” (p. 402) In Curry v. Kline, 187 Kan. 109, 353 P. 2d 508, the rule of the Powers and Roberts cases was followed, and it was said: “To enable a plaintiff to maintain an action of this nature it is necessary he allege and prove that the defendant was the active, controlling cause of the loss of the wife’s love and affection and that the defendant exercised an improper, willful and malicious influence in derogation of the plaintiff’s marital rights. The reason is obvious. Actions for alienation of affection have been subject to grave abuses and have been used as instruments for blackmail by unscrupulous persons for their unjust enrichment, due to the indefiniteness of the damages recoverable and the consequent fear of persons threatened with such actions that exorbitant damages might be assessed against them. The purpose for the rule is to stop the attempt by some to use the courts as a means to exact payment when the defendant’s acts were not the real or controlling cause of the alienation.” (p. 111) Without further elaboration of the details of this sorry mess— the entire picture is clear. The “morals” of the affair during the thirty-day period in 1957 when Evelyn was unmarried — of course are not to be condoned — but, for purposes of the precise questions presented — are beside the point. Immediately thereafter — and extending to 1967 — the undisputed evidence is that defendant was threatened with exposure and humiliation to him and his family— unless he met her demands for money. He complied — to the tune of over $100,000! Even though plaintiff be considered as innocent throughout the entire affair — as found by the trial court — he still is not relieved of the burden of establishing that defendant’s conduct was the controlling cause that destroyed Evelyn’s affection for him, and that the acts of defendant were done knowingly and intentionally for the purpose of alienating her affections. There is not one word of evidence to establish any such design — in fact, all is to the contrary. Her only concern was money — defendant’s only concern was silence as to his 1957 indiscretions. Except for the occasions when she came to his office — for money — and chance meetings on the street — there was no personal contact between them following the thirty-day period in 1957. Regardless of the label given to this bizarre affair — and whether it be denominated as blackmail, extortion or just a pure-and-simple “shakedown” — the situation presented is a good illustration of what this court may have had in mind in 1936 when in the Roberts case, above, it classified actions for alienation of affections as being obnoxious to the public welfare. In view of our conclusion, other matters in the briefs require no discussion. The judgment is reversed with directions to enter judgment for defendant.	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The opinion of the court was delivered by Schroeder, J.: This is an appeal by the claimant in a workmen’s compensation case. The workmen’s compensation examiner and the trial court awarded compensation to the claimant based upon a 65 percent loss of use of the right arm. The claimant contends the award should be 50 percent permanent partial general disability to the body as a whole. At issue on this appeal is the method for determining compensation due the claimant on the facts presented. It involves the interpretation to be given K. S. A. 1969 Supp. 44-510. On the 16th day of January, 1970, the claimant sustained a personal injury by accident which arose out of and in the course of his employment. The injury was limited to the right arm which resulted in permanent partial disability of the right arm of 65 percent according to the finding of both the workmen s compensation examiner and the trial court. (No review by the director was requested and an order was entered approving the examiner’s award.) Prior to the accidental injury to the right arm, the claimant on September 5, 1963, sustained a nonindustrial injury to his left hand which resulted in a permanent partial disability of 60 percent to the left hand. The claimant’s left hand was not injured in the accident with which we are here concerned. Prior to the accidental injury to the right arm on January 16, 1970, the claimant was regularly and fully employed with the respondent herein, and on March 30, 1970, ten weeks and two days after the injury here in question, the claimant returned to his regular work. He testified: “After I more or less recovered I went back to work in March, 1970. “Q. But since you went back to work, why you worked, done your regular work, and done all your regular shifts whenever the plant was operating, haven’t you? “A. Yes, sir, whatever he would ask me to do, I would do it. “Q. And you went back to working on the press machine, doing the same work that you were doing before the injury; isn’t that right? “A. Yes, sir. “Q. And since the injury, why you have done whatever work was required out there, haven’t you? “A. Yes, sir, whatever they asked me to do.” The claimant’s examining physician rated the disability to the right arm at 45 to 50 percent, and rated the prior injury at 60 percent disability of the left hand. He concluded by combining the two disabilities into a general bodily rating of 40 percent to the body as a whole. The respondent’s examining physician rated the disability to the right arm at 65 percent, and rated the prior injury to the left hand at 60 percent disability of the left hand, and concluded by combining the two disabilities into a general bodily rating of 50 percent to the body as a whole. The trial court specifically found the prior injury resulted in a 60 percent loss of use of the left hand, and a 65 percent loss of use of the right arm as a result of the accidental injury on January 16, 1970, and that as a result of both of these injuries the claimant has a permanent partial general bodily disability of 50 percent. It is to be noted the trial court did not find total disability from the two injuries. The trial court further found that as a result of the accidental injury on January 16, 1970, the claimant was temporarily totally disabled from January 16, 1970, to March 30, 1970, and thereafter the claimant continued to suffer a 65 percent permanent partial disability of the right arm. The examiner and the trial court awarded compensation of 9.29 weeks for temporary total compensation from January 23, 1970, to March 30, 1970, payable at the rate of $49 per week, and adopted the respondents disability rating of 65 percent permanent partial disability of the right arm and awarded future benefits of 130.46 weeks at $49 per week plus medical expenses, and plus some future medical expense. The temporary total disability benefits and medical expense allowances are not in controversy. The trial court awarded compensation for injury to the right arm based upon the schedule applicable to one arm. (K. S. A. 1969 Supp. 44-510d [13].) The claimant contends compensation should have been computed on the basis of 50 percent permanent partial general disability pursuant to K. S. A. 1969 Supp. 44-510e, formerly the proviso in K. S. A. 44-510 (3) (c) (24). The substance of the provisions of the workmens compensation act material to the point here under consideration has not been changed by the legislature since 1963, although in the amending process the provisions were made more difficult to find in the 1969 Supplement. For clarification we shall therefore refer to the sections of K. S. A. 44-510 as they appeared in the statute book following the 1963 amendment. Reference will be made to the 1968 amendment as it appears in the 1969 Supplement which is applicable to this case. K. S. A. 44-510 (3) (a) provides in part: “Loss of both eyes, both hands, both arms, both feet, or both legs, or any combination thereof, shall, in the absence of proof to the contrary, constitute a total permanent disability. ... In all other cases total permanent disability shall be determined in accordance with the facts.” (See K. S. A. 1969 Supp. 44-510c [a].) The foregoing section was applied in Honn v. Elliot, 132 Kan. 454, 295 Pac. 719, where the claimant injured both feet in one accident. In the opinion the court pointed out that at no place in the schedule does it attempt to provide compensation for both members when they are in pairs as “both hands,” “both feet,” “both eyes,” except as to loss of hearing in one or both ears. Since only permanent partial disability was sustained by the claimant the court said R. S. Supp. 1930, 44-510 ( 3) (c) (22) “provides the rule for computation for temporary or permanent partial disability not covered by schedule.” (p. 458.) The section of the workmen’s compensation act covering injuries which result in disability, partial in character but permanent in quality, is K. S. A. 44-510 (3) (c). The provisions with which we are here concerned read: “(c) Where disability, partial in character but permanent in quality, results from the injury, the injured workman shall be entitled to the compensation provided in paragraph 1 of this section, but shall not be entitled to any other or further compensation for or during the first week following the injury. Thereafter compensation shall be paid as provided in the following schedule, the average weekly wages to be computed as provided. . . .” (See K. S. A. 1969 Supp. 44-510d.) “(13) 12 * For the loss of an arm, sixty percent (60%) of the average weekly wages during two hundred ten (210) weeks.” (See K. S. A. 1969 Supp. 44-510d [13].) “(21) 19 * Permanent loss of the use of a finger, thumb, hand, arm, . . . shall be equivalent to the loss thereof. For the permanent partial loss of the use of a finger, thumb, hand, arm, . . . compensation shall be paid at sixty percent (60%) of the average weeldy wages, not in excess of . . . dollars . . . per week during that proportion of the number of weeks in the foregoing schedule provided for the loss of such finger, thumb, hand, arm, . . . which partial loss thereof bears to the total loss of a finger, thumb, hand, arm, . . .; but in no event shall the compensation payable hereunder for such partial loss exceed the compensation payable under the schedule for the total loss of such finger, thumb, hand, arm, . . . exclusive of the healing period.” (See K. S. A. 1969 Supp. 44-510d [21].) “(23) 21 * Whenever the workman is entitled to compensation for a specific injury under the foregoing schedule, the same shall be exclusive of all other compensation except the benefits provided in paragraph 1 of this section, and no additional compensation shall be allowable or payable for either temporary or permanent disability: . . .” (See K. S. A. 1969 Supp. 44-510d [23].) “(24 ) 22 * . . . In case of temporary or permanent partial disability not covered by schedule the workman shall receive during such period of temporary or permanent partial disability not exceeding four hundred fifteen (415) weeks, sixty percent (60%) of the difference between the amount he was earning prior to said injury as in this act provided and the amount he is able to earn after such injury in employment, ...” (See K. S. A. 1969 Supp. 44-510e.) “(26) 24 * If a workman has suffered a previous disability and received a later injury, die effects of which together with the previous disability shall result in total permanent disability, then and in that event the compensation due said workman shall be the difference between the amount provided in the schedule of this section for his prior injury and the sum total which would be due said employee for such total disability. . . .” (See K. S. A. 1969 Supp. 44-510e.) Both the examiner and the trial court applied subsection 13 and subsection 23 to determine the claimant’s award of compensation. They concluded subsection 26 was not applicable to this case because the claimant became only partially disabled, and not totally disabled, after the second accident. Under such circumstances the injury and disability resulting from the accident with which we are here concerned fall within the provision for scheduled injuries, and subsection 23 is controlling to require benefits to be computed as a scheduled injury. Piper v. Kansas Turnpike Authority, 202 Kan. 771, 451 P. 2d 152, and the authorities discussed therein clearly hold that where a workman has suffered a previous disability and received a later injury, the workman is entitled to compensation under subsection 26 only where the effects of the two injuries result in total permanent disability. (See, also, Stevens v. Kelly-Carter Coal Co., 140 Kan. 441, 37 P. 2d 48.) The claimant argues the trial court treated subsection 26 as a statute of limitation, whereas it extends the benefits where total permanent general disability is involved. The claimant calls our attention to the language above quoted from 44-510 (3) (a), supra, and contends the meaning of subsection 26 is determined by referring back to that language. He argues: “. . . In other words, all the workman needs to show under Paragraph 26, is to establish loss of specific members set out in the introductory paragraph of Section 3. For example, he does not need to show actual loss of earning power as in the ordinary case or any connection between the previous condition and the instant accident. All the workman needs to show is that the previous loss coupled with the instant one exists. “If Paragraph 26, is not given that meaning, it becomes mere surplusage and of no value whatsoever. “Since Paragraph 26, covers only total permanent type of injuries, we are obliged to look to another section of K. S. A. 63, 44-510, to see if a partial permanent disability is covered where the disability to one specific number [member] involved was caused by a prior incident. We feel Paragraph 24, of 44-510, above quoted, does that very thing. If Paragraph 24, is not given that meaning, it also becomes mere surplusage and of no value whatsoever.” We fail to see merit in the claimant’s argument. The claimant relies on the proposition that the workmen’s compensation act establishes no standard of health necessary to bring a workman under the act, and accidental injuries are compensable thereunder where the accident only serves to aggravate or accelerate an existing disease or intensifies the affliction, citing Gilliland v. Cement Co., 104 Kan. 771, 180 Pac. 793; and Johnson v. Skelly Oil Co., 181 Kan. 655, 312 P. 2d 1076. These cases have no application where the benefits to which a workman is entitled under the act involve a scheduled injury. Other cases cited by the claimant do not support his contentions because the second injury when combined with the prior disability resulted in total permanent disability of the workman. The claimant relies upon Honn v. Elliott, supra, involving permanent partial disability, and criticizes Piper v. Kansas Turnpike Authority, supra, for not giving the reasoning in the Honn case adequate consideration in deciding the Piper case. The provisions of the workmen’s compensation act are clear and limit benefits in instances of partial disability to scheduled members of the body to the amount provided by the schedule. When a specific injury and disability is a scheduled injury under the workmen’s compensation act, the benefits provided under the schedule are exclusive of any other compensation. (Riggan v. Coleman Co., 166 Kan. 234, 200 P. 2nd 271; and Wammack v. Root Manufacturing Co., 184 Kan. 367, 336 P. 2d 441.) The court in Wammack discussed scheduled injuries, and held where the workman lost the permanent use of a thumb and also lost the permanent partial use of the other thumb, the provisions of the act did not limit recovery to a single thumb, but where the workman while engaged in the performance of his duties suffered injuries in an accident which resulted in the sustaining of separate and distinct injuries to both thumbs, he was entitled to compensation for each of the injuries so received as scheduled injuries. In the opinion the court distinguished Honn v. Elliott, supra. On the facts in this case the injury and disability clearly fall within the rules relating to scheduled injuries, and since the second injury and disability did not result in total disability, the trial court properly awarded compensation under the schedule. The judgment of the lower court is affirmed.	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The opinion of the court was delivered by Fromme, J.: Plaintiff appeals in an action for personal injuries received as a passenger in a one car automobile accident. The appeal is from a summary judgment entered in favor of the defendant driver. The trial court considered the contents of the court file, the depositions of the parties, the arguments of counsel and the briefs filed. It concluded as a matter of law that the plaintiff was a guest of the defendant within the meaning of K. S. A. 8-122b, that there was no evidence to support a claim of gross and wanton negligence against the defendant and that no genuine issue as to any material fact remained. The plaintiff passenger and the defendant driver were the only persons in the car at the time the accident occurred. Both suffered serious injuries and neither could recall any details of the accident because of memory loss. There were no eyewitnesses available. It is understandable that no evidence could be discovered to support a charge of gross and wanton negligence. Counsel for plaintiff, as a result, has conceded the lack of any evidence to support the charge of gross and wanton negligence and has quite properly abandoned the same on appeal. K. S. A. 8-122b 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.” (Emphasis added.) One general question remains for decision in this appeal. Was the plaintiff a guest within the meaning of the statute? There is no dispute in the depositions as to the events leading up to the accident. If plaintiff was a guest of the defendant the trial court was correct in entering a summary judgment in favor of defendant. We turn now to the facts. Plaintiff Carruth and defendant Cunningham were schoolmates in high school and had just completed their junior year. Cunningham owned an automobile. Carruth owned none. They had previously been together on social occasions and had driven around in Cunningham’s car. On the night in question Carruth and a friend by the name of Danny Buxton were together at Carruth’s home. They wanted to go across town to a “get together” at the home of another friend by the name of T. C. Sumpter. Carruth called Cunningham on the phone and asked him if he wanted to go to a party at T. C. Sumpter’s house. Cunningham did and he stopped by and picked up Carruth and Buxton. After they were in the car and on their way, Cunningham said he was low on gas and he wondered if Carruth and Buxton could buy some gas for the car. They did so. Each put up twenty-five cents and the gas was purchased. After “getting together” at T. C. Sumpter s house they decided to ride around. The four young men rode around for a while, stopping for something to eat at McDonald’s and for cigarettes at Tilton’s Market. Later they returned to the Sumpter home. Sometime later Cunningham and Carruth decided to leave and look for girls. They headed for the Collins Drive-In on West 10th (6th) Street. Because of memory loss occurring from their head injuries neither young man could remember any further events of the evening. They were both seriously injured and the car demolished. The car hit a concrete abutment on West 10th Street just south' of Gage Park in Topeka. In plaintiffs deposition he testified it was more or less customary for the boys to buy gas for the automobile if they rode with someone else. In Kansas we have a long line of cases construing the guest statute. These cases are collected in the case annotations appearing under the statute and the supplement. Whether a person is a “guest” within the meaning of K. S. A. 8-122b depends upon the facts and circumstances of the particular case. (See Gorelick v. Ernstein, 200 Kan. 619, 438 P. 2d 93; Lightcap v. Mettling, 196 Kan. 124, 409 P. 2d 792; Flynn v. Allen, 187 Kan. 578, 358 P. 2d 734; Ehrsam v. Borgen, 185 Kan. 776, 347 P. 2d 260 and In re Estate of Dikeman, 178 Kan. 188, 284 P. 2d 622.) In Bedenbender v. Walls, 177 Kan. 531, 280 P. 2d 630, it was held: “In determining the question whether a person is or is not a ‘guest’ within the meaning of the statute, among the many elements to be considered are the identity and relationship of the parties; the circumstances of the transportation; the nature, type and amount of ‘payment’; the benefits or advantages resulting to the respective parties growing out of the transportation; whether the ‘payment,’ of whatever nature, constituted a tangible benefit to the operator and was the motivating influence for furnishing the transportation; and the nature and purpose of the trip.” (Syl. ¶ 4.) In the recent case of Rothwell v. Transmeier, 206 Kan. 199, 477 P. 2d 960, it was pointed out any substantial benefit accruing directly to the driver from the transportation of a passenger may be sufficient to constitute compensation if it be motivating and not merely incidental in character; but social benefits and pleasures, whether mutual or otherwise, are insufficient to obviate the provisions of the guest statute. In the Rothwell case two young women were looking for a boy friend of the driver. In the course of the excursion the passenger supplied a “couple of her dimes” to operate a vacuum cleaner to clean the car. The two dimes were furnished merely as a social amenity. This money was held not to transform the passenger’s status into that of a passenger “for pay.” We cannot distinguish the Rothwell case or the case of Bedenbender v. Walls, supra, from the present case. In Bedenbender as here the facts show a situation of common everyday experience— that of a social courtesy between friends when the undertaking is for mutual social pleasure. The mutual benefits flowing to the driver and the passenger are of a social nature. The purchase of gasoline is nothing more than a social amenity and is not a motivating influence for the trip. In the present case the trip was purely social in nature and in addition no definite trip or route was planned in advance. The two young men were merely riding around in Topeka. They drank, they ate, they purchased cigarettes and they looked for girls. When the purpose of an automobile excursion is purely for social purposes, mutual pleasure and the enjoyment of the parties, an incidental payment for gasoline by tire person being transported does not constitute “payment for such transportation” within the meaning of the statute. The facts of this case lead to one conclusion, the ill-fated trip was a sociable excursion in the high school tradition in which the element of compensation (50 cents worth of gas) was not a motivating factor. Accordingly the trial court did not err in entering a summary judgment in favor of defendant and its judgment is affirmed.	[ -16, 104, -35, -66, 57, 96, 42, 88, 101, -57, 34, -45, -81, -53, 20, 107, -10, -81, 84, 43, -43, -77, 7, -61, -14, 115, 51, 84, -73, -54, -26, -2, 77, 32, -118, -43, 102, 75, -9, -36, -114, 15, -88, -11, 120, 66, 36, 58, 22, 10, -15, -97, -29, 46, 26, 71, 41, 40, 75, -67, -112, -16, 15, 13, 111, 2, -94, 52, -68, -93, -8, 24, -100, -79, 32, -4, 112, -90, -128, -12, 107, -101, -120, -90, 98, 33, 17, -63, -67, -103, 46, 126, 31, -89, 88, 89, 9, 33, -73, -99, 115, 112, 45, 120, -16, 85, 92, -28, 3, -53, -106, -111, -17, 49, 58, -120, -29, 43, 37, 113, -36, -14, 84, 69, 120, -101, -34, -110 ]
The opinion of the court was delivered by Kaul, J.: The subject of this controversy is a judgment in the amount of $1,142.46 which was obtained by plaintiff, Walter J. Nelson, in an action against defendant, Joseph A. Boula. In proceedings prior to the judgment resulting in this appeal, the litigation had resolved into a dispute between Evart Mills, claimant-appellee, who claims the funds by right of an assignment from Nelson and/or by an attorney’s lien and Clarence W. Burnette and Leonard H. Eaton, garnishers-appellants, who claim their garnishments of the funds in question are prior and superior to the assignment to Mills. Appellee Mills will be referred to as claimant or Mills. Appellants Burnette and Eaton will be referred to jointly as garnishers. The trial court held the assignment to Mills superior to the garnishment claims and further ruled that in any event Mills’s rights to the proceeds of the Boula judgment were paramount by reason of his attorney’s lien. The case involves litigation in the district courts of both McPherson and Saline Counties. On July 19, 1968, in the district court of McPherson County, Eaton obtained a judgment against Nelson in the amount of $1,429.64. On November 22, 1968, Burnette obtained a judgment against Nelson in the amount of $1,429.64. Neither judgment has been paid. On April 28, 1969, in the district court of Saline County, Nelson obtained a judgment in the amount of $1,142.46 against Boula. On the same day Nelson assigned the judgment to Mills. On April 29, the following day, Mills filed an attorney’s lien in the Boula case claiming a lien upon the entire amount of the judgment. Mills says that his firm represented Nelson in a mass of litigation and that the fees for professional services and expenses totaled $2,000.00. On May 9, 1969, Burnette had a garnishment issued on Boula and his attorney, Frank Norton of Salina, which was served on Norton on May 16, 1969. No service was made on Boula. On May 22, 1969, Eaton had a garnishment issued on Boula and Norton which was served on Norton on May 23, but again no service was had on Boula. On May 28, 1969, Norton answered both garnishments for himself and Boula. The garnishments were issued out of the McPherson district court and Norton’s answers of the garnishees were filed therein on June 2, 1969. In his answers Norton acknowledged that, as a result of a stipulation and judgment in the Nelson v. Boula case, Boula was indebted to Nelson in the amount of the judgment and was in the process of paying that sum to the clerk of the district court of Saline County. The answers of the garnishees were filed in the McPherson district court on June 2, 1969. Thereafter, all proceedings were had in the district court of Saline County and culminated in tire judgment which is the subject of this appeal. Burnette and Eaton specify several errors on appeal. Then-principal contention, and that which we believe governs the disposition of this appeal, is that the trial court erred in according priority to the assignment over their garnishments. Garnishers claim that under the provisions of K. S. A. 60-2405 the assignment did not become effective as against them until it was filed in the office of the clerk of the district court of Saline County on May 26, 1969. Mills, on the other hand, claims it has long been the settled law of this state that an assignment is superior to a subsequent garnishment and that 60-2405 only broadened the scope of its predecessor (G. S. 1949, 60-3220) in serving as a procedural means to enable a substituted party to pursue his rights against a judgment debtor. Mills further argues that even though 60-2405 was to be construed in the manner proposed by the garnishers they could not prevail since Boula was never served with an order of garnishment and did not appear of record in the garnishment proceedings until his answers were filed on June 2, 1969, several days after the assignment was filed. In support of his position on this later point, Mills cites our recent decision in Briscoe v. Getto, 204 Kan. 254, 462 P. 2d 127. While there appears to be merit in the position taken by Mills in this regard, we believe the issue may be resolved by a determination of the effect of 60-2405. At the outset, it should be pointed out that the validity of the assignment by Nelson of the Boula judgment to Mills, on April 28, 1969, is not challenged. In fact, the assignment is stipulated to by the parties. Burnette and Eaton simply claim the assignment did not become effective as to them until it was filed with the clerk of the district court. There is no contention the assignment was made without consideration or to hinder or delay creditors of Nelson. It is settled law that property validly transferred or assigned by a defendant cannot thereafter be reached by garnishment. (38 C. J. S., Garnishment, § 77, p. 273; 6 Am. Jur. 2d, Attachment and Garnishment, § 461, pp. 883, 884.) This is a necessary consequence of the principle that garnishment will reach only such property as belongs to a defendant. (K. S. A. 60-717 [c], now 1970 Supp.) In Hall v. Terra Cotta Co., 97 Kan. 103, 154 Pac. 210, it was said: “The general rule is that garnishment, like other proceedings in invitum, only affects the actual property, money, credits and effects of the debtor in the hands of the garnishee, and the rule relating to bona fide holders or purchasers without notice has no application (citing cases).” (p. 105.) See, also, Chatterton v. Clayton, 150 Kan. 525, 95 P. 2d 340; Schmidt v. Sullivan, 145 Kan. 627, 66 P. 2d 548; Curry v. Bunds, 145 Kan. 476, 66 P. 2d 584; and Bank v. Schuetz, 103 Kan. 229, 173 Pac. 278. In Chatterton v. Clayton, supra, the holding in Hall v. Terra Cotta Co., supra, was quoted with approval and it was further said: “. . . a creditor in garnishment is not aided by the mere fact he did not Lave notice or knowledge of a previous assignment of the property or fund he seeks to reach. . . .” (p. 527.) The rule applies even though the judgment was orally assigned. In Gilmore v. Bank, 90 Kan. 405, 133 Pac. 726, it was held: “A judgment may be assigned by parol, and after the assignment may be enforced by the assignor in the name of the original plaintiff.” (Syl. ¶ 2.) Garnishers argue in essence that 60-2405 nullifies the prevailing rule in that a prior filing of an assignment is now necessary in order that it be accorded priority over a garnishment. K. S. A. 60-2405 of our new code of civil procedure prescribes the procedure for the substitution of a judgment creditor. It reads: “Substitution of judgment creditor. Any person who claims to have succeeded to the interest of the holder of a judgment by appointment as personal representative for a deceased or incompetent judgment holder, by assignment, by operation of law, or otherwise, shall file with die clerk a copy of his letters as personal representative, assignment, or proceedings effecting such transfer, and thereafter such successor in interest shall be entitled to all the rights and remedies available to his predecessors and may proceed to enforce the same in his own name as such successor. If the validity of any such transfer be controverted by any party affected thereby, the court shall, on reasonable notice to all interested parties whose whereabouts are known, determine the respective rights and liabilities of all the parties.” K. S. A. 60-2405 is a section of Article 24 dealing with executions and orders of sale. While it is more comprehensive than its predecessor G. S. 1949, 60-3220, which applied only to the death of a party to a judgment, the purpose of 60-2405 is essentially the same, i. e., to substitute the “successor in interest” for the “judgment creditor” and give the successor the right to enforce the judgment by merely filing proof of the succession of the interest with the clerk of the court. In other words, the subject section is intended to provide an assignee or any successor with the means to enforce the judgment to which he has succeeded rather than to aid a creditor in garnishment by reason of the mere fact that he did not have notice of a previous assignment. A further purpose of the statute is to authorize the determination by the court of the rights and liabilities of the parties if the validity of the transfer is controverted. As we have previously pointed out, the validity of the assignment here is not controverted. In Gard, Kansas Code of Civil Procedure Annotated, § 60-2405, the author comments: . . Its purpose is to substitute the successor in interest for the judgment creditor and give him the right to step into the shoes of the judgment creditor and collect or enforce the judgment. No procedural machinery is necessary as in the case of substitution of parties to a pending action where one has died. Simply filing the evidence of successorship with the clerk is all that is required. If there are conflicting claims they may be threshed out in the execution proceedings.” (p. 805.) Similar comments on the subject may be found in 6 Vernon’s Kansas Statutes Annotated, Code of Civil Procedure (by Fowks, Harvey and Thomas) § 60-2405, p. 147 (discussion written by Charles N. Henson), and in Volume 12 Kansas Law Review (1963), p. 75, “Some Comments on the New Code of Civil Procedure,” by Emmet A. Blaes. Gamishers cite two cases from other jurisdictions, neither of which is applicable because of the particular statutes involved. In Mottet v. Stafford, 94 Wash. 572, 162 Pac. 1001, the court recognized the general rule and the soundness thereof in the absence of countervailing statutes, but pointed out that the applicable Washington statute (Rem. Code, § 664) specifically authorized garnishment of money in the hands of a defendant when the judgment had not been previously assigned on the record. Thus, a garnishment necessarily took precedence over an unrecorded assignment. The case of Ware v. Barr, 126 Colo. 311, 248 P. 2d 1073, involved a Colorado statute dealing specifically with the assignments of accounts receivable (C. R. S. 1963, 11-2-1), which explicitly required the recording of the assignment of such accounts in order that the assignment be protected. We have examined other points raised; however, since what has been said effectively disposes of this appeal a further discussion is unnecessary. The judgment is affirmed.	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The opinion of the court was delivered by Schroeder, J.: This is a criminal action in which the defendant, William Neal Dodson, was tried and convicted by a jury of the offenses of second degree burglary and larceny (K. S. A. 21-520 and 21-525, respectively) and was sentenced pursuant to K. S. A. 21-523 and 21-524. Appeal has been duly perfected assigning three specifications of error. The appellant was one of the occupants in a yellow Chevrolet automobile driven by Bernard Donald Kanan, which was stopped by the Saline County deputy sheriff Siewert at 3:13 a. m. on March 18, 1968, in Salina, Kansas. The facts concerning the appellant’s arrest, the search of the Kanan automobile, and the seizure of money and checks identified as coming from the Eagles Lodge in Salina, are fully detailed in State v. McMillin, 206 Kan. 3, 476 P. 2d 612. This is the third appeal to this court growing out of the burglary of the Eagles Lodge in Safina, Kansas, on March 18, 1968. (See State v. McMillin, supra; and State v. Brooks, 206 Kan. 9, 476 P. 2d 617.) As in the other cases appealed to this court the appellant challenges the legality of the vehicular search and seizure of stolen property found in the Kanan automobile. Over objection the fruits of the search were introduced in evidence at the appellant’s trial which resulted in a conviction. Here, however, the appellant contends the search warrant was illegally issued because his attorney was excluded from the hearing before the magistrate to whom application was made for the warrant. He contends the exclusion of his attorney from the hearing for a search warrant was a violation of his Sixth Amendment rights. After the appellant’s arrest on the morning in question Mr. Kanan made a phone call to an attorney in Kansas City whom he retained as counsel. The officers having custody of the appellant were informed the appellant intended to use the same attorney. This was approximately one-half hour before the hearing upon the application for such warrant. On the facts here material the point asserted by the appellant concerning the right to have his counsel present is immaterial. Assuming the search warrant to have been improperly issued (See State v. McMillin, supra), the seizure of the evidence used in the trial of this case from the Kanan automobile was not the result of an unreasonable search and seizure. The court has thoroughly dealt with the subject on the facts here presented in State v. McMillin, supra. We follow and incorporate herein the opinion in the McMillin case which contains a complete statement of the facts, the law, and this court’s conclusions which warrant rejection of the appellant’s contentions on the point here under consideration. The appellant asserts he was denied his constitutional rights because the record does not affirmatively show that all jurors were qualified. He argues the trial court failed to determine on voir dire examination that no juror had served as a juror in any capacity during the year next preceding his selection. (See K. S. A. 43-103.) The appellant does not allege or even suggest that any juror was in fact not qualified because he had served within the previous year. A thorough search of the record reveals that at no time during the voir dire examination nor during the trial was the qualification of any juror questioned. No objection was made to the qualification of any juror who was sworn to try the case, and the qualification of no juror was raised at the motion for a new trial. For the first time on appeal the appellant asserts this point. Furthermore, the appellant does not allege or even suggest that he would have been prejudiced in any way even had a juror been so disqualified. This point has previously been asserted and found to be without avail in State v. Ready, 44 Kan. 700, 26 Pac. 58, where the court held: “Where an objection to the competency of a juror, namely, that he had served as a juror in the same court in another case within the preceding year, is first raised after verdict, and the party objecting fails to show that the ground of challenge was unknown to him and his counsel when the juror was accepted, or that he would have exercised his right of challenge if he had known that the cause therefor existed, or that he has suffered any prejudice by the retention of the juror, the objection will not be available for the purpose of obtaining a new trial.” (Syl.) Our cases have consistently held that where the question concerning a juror’s qualification is not raised until after the verdict it comes too late. (State v. Jackson, 27 Kan. 581; State v. Hilbish, 126 Kan. 282, 284, 267 Pac. 1109; and State v. McCombs, 163 Kan. 225, 181 P. 2d 473.) The third specification asserted by the appellant is that the trial court erred in accepting both a pair of Western-style boots belonging to him and testimony concerning the boots in evidence. At the time of the appellant’s arrest in the early morning hours of March 18, 1968, he was wearing a pair of Western-style boots which Detective Wilson took from him at the Salina police station and forwarded to the Kansas Bureau of Investigation. Another detective found a receipt or ticket bearing a heel print directly in front of the safe that had been broken into at the Eagles Lodge. This paper bearing the heel print was also forwarded to the Kansas Bureau of Investigation. The heel of the boot was identified as making the print on the paper and both the boot and the paper were introduced in evidence. The appellant contends the single question involved in determining the admissibility of evidence derived from the appellant’s boots is whether such evidence resulted from an unlawful seizure incident to the arrest. It is contended the court confused the right of police officers to lawfully seize fruits of crime incidental to an arrest and the unlawful seizure of other items at a later time while the accused was in custody. Here it is argued the seizure was not incident to the arrest. The record clearly shows the appellant’s boots were worn by him at the time of his arrest; that they were observed on him by the officers; and that the boots were taken from him at the Salina police department after his arrest. The detective taking the boots into custody had a piece of paper bearing heel marks that had been brought to him from the scene of the crime. Taking the boots could not in any way be considered a search and seizure. They were obviously in plain view, and the officer had every reason to believe they would constitute evidence of the appellant’s presence at the scene of the crime. Kansas has long recognized the right of law enforcement officers to gather such evidence. In State v. Allen, 156 Kan. 717, 137 P. 2d 163, the court approved the forceful taking of the defendant’s shoes which he was wearing at the time of his arrest for the purpose of comparing the prints to the footprints found at the scene of the crime. In the opinion the court said: “Precedents can be found in the lawbooks that the forcible abstraction of a defendant’s property will bar its use as evidence in a criminal prosecution, but the well-reasoned majority view, which is to the contrary, is tersely stated in 1 Wharton on Criminal Evidence, 11th ed., section 271, in part, as follows: “ ‘Many jurisdictions support the proposition that the admission in evidence of shoes taken forcibly from the person of one under arrest for commission of a crime, or of the result of a comparison of the tracks with the shoes so obtained, for the purpose of identifying him with the person who made tracks found near the scene of the crime, does not violate the rule against self-incrimination. It has also been held that the constitutional provision against unreasonable searches and seizures does not prevent the introduction of evidence of a comparison of footprints with shoes forcibly taken from one accused of crime.’ (p. 344.)” (p. 719.) Here the police officers were simply gathering evidence clearly within their view which they had every reason to suspect would be useful in their investigation. The trial court did not err in the admission of the boots into evidence and in the admission of other evidence relating to these boots. The judgment of the lower court is affirmed.	[ 112, -30, -23, 60, 11, 96, 2, 26, 98, -111, 116, 83, -87, -54, 4, 121, 126, 29, 116, 105, -51, -74, 71, -47, 50, -77, -39, -43, -77, 75, -20, -9, 72, -96, -54, -35, 38, 8, 5, -36, -114, 5, 57, -45, -39, 0, 52, 43, 22, 11, -15, 30, -29, 106, 26, -46, 104, 44, -117, 45, 73, -14, -85, 31, 95, 22, -109, -122, -72, 7, 80, 62, -104, 24, 32, -8, 115, -122, -110, 116, 111, -103, -88, 110, 98, 34, -103, -17, -20, -115, 14, 51, -121, -89, -110, 65, 105, 37, -106, -103, 113, 18, 35, -4, -5, 21, 31, 124, 3, -53, -16, -111, -51, 114, 22, 59, -21, -127, 0, 113, -51, 118, 92, 71, 113, -101, -114, -108 ]
The opinion of the court was delivered by Harman, C.: This is an appeal from a district court’s denial of a workmen’s compensation claim for disability based on cerebrovascular injury. Claimant-appellant, Victor J. Dolan, fifty-three years of age, had been for about twenty years in the employ of respondent-appellee, H. W. Steele, a Texaco oil distributor in Salina, Kansas. Claimant’s principal job was to make deliveries by truck of gas, oil and grease. He also unloaded freight cars of oil products when they were shipped to respondent’s bulk plant. Respondent’s only other employee was a female bookkeeper. Claimant testified that on the morning of July 6, 1967, he unloaded a freight car and set up fifteen or twenty fifty-five gallon drums of oil products, which was heavy work. After unloading the car claimant made several deliveries; while en route to another delivery that afternoon he sustained a stroke, went off in the ditch with his truck, and was hospitalized; his duties were primarily making small deliveries; he would help unload carloads of oil whenever they came in; Mr. Steele frequently helped out but claimant often handled the barrels alone; about once a month claimant would help unload freight cars. A restaurant owner testified she recalled seeing claimant unloading a car the same day upon which he was later hospitalized. - ■ A general medical practitioner testified on claimants behalf: He had examined claimant but had not treated him; claimant could have had a cerebral vascular accident as a result of the exertion of unloading the freight car and that would be a logical assumption; claimant’s work probably precipitated his condition; what he was really saying was there was a possibility claimant’s unloading work precipitated the accident. On respondent’s behalf documentary evidence from the Union Pacific railroad was produced indicating the freight' car in question was unloaded prior to July 6, 1967, the car having been “spotted” on that company’s tracks for unloading; records from the Santa Fe railroad, which had had the car brought in and against whom claim for freight damage had been made, also indicated the car was unloaded prior to July 6, 1967. Respondent Steele testified the freight car was not on the siding on that date. Mr. Steele also testified that in June, 1967, claimant had delivered about six or seven thousand gallons of oil; claimant frequently loaded and unloaded thirty or fifty-five gallon drums of oil, principally the latter size; claimant unloaded oil drums from freight cars two or three times per month; he delivered barrels of oil to respondent’s customers. The physician who treated claimant, Dr. Weber, was a specialist in internal medicine. He first examined claimant when he was hospitalized July 6, 1967. He testified claimant had a preexisting arteriosclerosis; claimant had sustained a cerebral thrombosis; the cerebral thrombosis was not related to claimant’s work; claimant’s exertion did not have any effect upon his disease. The workmen’s compensation examiner found that claimant’s preexisting disease was precipitated into a disability by “work more than claimant performed on a day to day basis” and he awarded compensation. Upon review the workmen’s compensation director likewise awarded compensation, finding that claimant’s exertion in unloading the freight car was more than his usual work in the course of his regular employment and further that his cerebral vascular accident was causally related to the exertion of the work he was performing for respondent. Upon respondent’s appeal the district court denied compensation and entered the following order: “The claimant sustained a stroke on July 6, 1967, while making a delivery of petroleum products for the respondent. He had for 20 years been employed as a delivery man for the respondent and was the only employee other than a woman bookkeeper. “Respondent is the Texaco bulk station operator in Salina. Claimant’s day to day work was delivering gasoline and petroleum products to customers. The respondent routinely received railroad freight car deliveries of barrels of oil and petroleum products at irregular intervals. The claimant unloaded the freight cars at such times as the needs of the business required, approximately once a month over the years. “There is a dispute as to the exact work performed by claimant on July 6, the day of his stroke. He claims to have unloaded barrels of oil from a freight car in the early morning. A disinterested witness supports claimant’s allegation that he unloaded barrels from the car the day of his stroke. Claimant claims this is exertion of work more than his usual work in the course of his regular employment since it is not his day-to-day work but done only about once a month. “The 1967 amendment of KSA 44-501 provides: “ ‘Compensation shall not be paid in case of coronary or coronary artery disease or cerebrovascular injury unless it is shown that the exertion of the work necessary to precipitate the disability was more than the workman’s usual work in the course of the workman’s regular employment.’ “The Court has no cases decided under this amendment, nor even under similar statutes, for it’s guidance. It is a statute intended to limit recovery in cases of cerebrovascular injury. To support an award of compensation the cause must be exertion of work more than that of usual work in the regular employment. “Claimant interprets the statute to include a day-to-day element in the usual work and regular employment. “The Court finds that it was ‘usual work’ for this employee to unload barrels from a freight car and that it was work in the course of his regular employment though performed at irregular intervals as the routine of business required. The statute contains no day-to-day standard so far as this court can ascertain. “In addition to these considerations as to the nature of the exertion expended by the claimant on July 6 the Court gives great weight and credit to the testimony of Dr. Weber, the claimant’s own treating physician. His clear and unequivocal opinion is that the exertion of claimant’s work was not a significant causative factor in the claimant’s injury. “The Court finds that the claimant has failed to sustain his burden of proof and that award of compensation should be and is denied.” Claimant’s sole contention of error presented to this court in his statement of points is: “This District Court erred in construing K. S. A. 1967 Supp. 44-501 pertaining to cerebrovascular injuries. The Court strictly construed the meaning of the term ‘usual work’ in said amendment against the injured workman in violation of the Kansas Workmen’s Compensation Act’s rule of liberal construction, which provides that all provisions of the Act shall be liberally construed in favor of the workman, in order to award compensation where reasonably possible to do so.” Claimant argues that legislative intent in enacting the 1967 amendment to K. S. A. 44-501, expressing the obligation under the workmen’s compensation act, must have been to define the term “usual work” as used therein to mean “standard regular day-to-day work.” In presenting his contention for reversal and remand claimant would have us disregard the trial court’s statements respecting the medical aspect of the case. We are unable so to do. Actually the trial court made two separate findings, either of which, if proper, would preclude award of compensation. First, the court found under the evidence that it was “usual work” for claimant to unload barrels from a freight car. This finding was not in harmony with those made by the examiner and director, which latter findings embody standards of statutory interpretation claimant would have us adopt on appeal. However, as indicated, the trial court did not stop with the nature of the work aspect but it found, additionally, that giving credit to the testimony of the treating physician, the exertion of claimant’s work was not a significant causative factor in claimant’s injury. This amounted to a positive finding which we may not with propriety ignore, supported as it is by the clear and unequivocal opinion of Dr. Weber that claimant’s work had no effect upon his disease and the cerebral thrombosis was not related to his work. Our law has always been that whether a heart attack is causally related to the employee’s work is a question of fact (see Hanna v. Edward Gray Corporations, 197 Kan. 793, 421 P. 2d 205). Nothing in the 1967 amendment has eliminated this element of causation in fact, essential for disability to become compensable. Under the amendment the causal relation of the exertion to the cerebrovascular injury remains a question of fact. With respect to this issue of causation the usualness of the exertion is irrelevant. This was the import of our recent holding in Muntzert v. A. B. C. Drug Co., 206 Kan. 331, 478 P. 2d 198, in which compensation was sought by the widow of a workman who died from a heart attack shortly after leaving his place of employment. Upon conflicting medical testimony the district court found there was no causal relation between the decedent’s employment and the coronary occlusion which caused his death. On appeal the claimant’s argument was directed toward a finding of the district court that the evidence did not establish any “unusual activity” on decedent’s part within the contemplation of the 1967 amendment to 44-501. Appellant there contended that the term “unusual activity” has a dissimilar connotation than the phrase “more than the workman’s usual work” as used in the statute, arguing that “unusual” implies a greater variation from the norm than “more than usual”. Appellant there sought, as does claimant in the case at bar, to have this court declare a particular standard applicable to the work aspect of the case. In response this court stated: “Whatever might be the semantic basis for the appellant’s claim, we believe it would be fruitless for us at this time to engage in learned discussion as to what, if any, practical distinction exists between ‘unusual’ and ‘more than usual.’ We simply do not reach the point of construing the 1967 amendment. The trial court found, on what we deem sufficient evidence, that there was no causal relationship between the decedent’s employment and the coronary occlusion suffered after he left work, and that the occurrence did not arise out of and in the course of the decendent’s employment. Thus, whether the decendent’s work on the day in question was more than his usual work becomes entirely irrelevant, and we need not now become involved in the thicket of semantics.” (p. 333.) We see no reason to depart from this approach. The factual findings on causation is supported by substantial competent evidence and under the familiar rule may not be set aside upon appellate review. The judgment is affirmed. APPROVED BY THE COURT.	[ -16, 110, -8, -115, 26, -32, 42, -38, 69, -89, 53, 83, -19, -13, 77, 45, -17, 53, 117, 43, -9, -78, 19, -117, -45, -73, 57, -59, -70, 75, -28, 86, 77, 32, 10, -107, -26, 64, -59, 92, -52, 4, -71, -19, 89, 16, 56, 106, -106, 79, 17, -98, 75, 42, 24, -25, 77, 44, 75, 42, -48, -15, -117, -115, -17, 16, -126, 4, -100, 47, -8, 30, -104, -79, 32, -84, 82, -90, -126, -12, 35, -119, 4, 98, 99, 33, 21, -27, -20, -72, 22, -34, -113, -123, -80, 25, 89, 71, -97, -99, 122, 20, 30, 124, -4, 21, 95, 108, -113, -117, -74, -79, 79, 48, 28, -101, -21, -91, 22, 113, -33, -94, 93, 69, 122, -101, 87, -110 ]
The opinion of the court was delivered by Foth, C.: The sole issue in this appeal is the proper measure of damages to be awarded where certain airplane parts owned by plaintiff-appellant were partially destroyed in a shipment as a result of the conceded negligence of defendant-appellee, a common carrier. Trial was to the court, which entered judgment in favor of the plaintiff for the amount which it had paid for the entire lot of parts, plus the cost of salvaging that portion which was not damaged beyond repair. Plaintiff appeals, contending the judgment was inadequate. The evidence and the contentions of the parties are well summarized by the trial court’s findings of fact and conclusions of law; “FINDINGS OF FACT “1. Prior to July 18, 1967, plaintiff ordered from Huctrol, Inc., Kingston, New York, certain airplane parts for use in the hydraulic system of the Cessna 210 Airplane, consisting of 161 Spindles, 19 Body Assemblies and 135 Piston and Rod Assemblies. Huctrol, Inc., had purchased these items from the original manufacturer through a bankruptcy proceeding in the State of New York. All of these parts were packed by Huctrol in one container weighing in excess of 700 pounds, and shipped these parts in the one container by truck to plaintiff in Wichita. The defendant carrier picked up this one container of aircraft parts in Kansas City from another truck line for delivery to plaintiff in Wichita, Kansas. The container was delivered to plaintiff’s place of business about 8:30 a. m. on July 18, 1967, at which time it was raining. There being no facilities at plaintiff’s place of business to unload the container, an employee of plaintiff instructed the driver of defendant’s truck to take the container back to the defendant’s dock and that it would be picked up that afternoon. The evidence reflects that plaintiff’s employee drove a van-like truck to defendant’s dock about 2:30 p. m., and at that time the container was loaded into plaintiff’s truck. The evidence is that the container had been sitting on an open dock prior to the time it was picked up by plaintiff’s employee, and' that it had gotten extremely wet. ' . ' “2.' The testimony reflects that plaintiff’s employee drove the van back to plaintiff’s place of business and parked the van inside where he left the container on the van, and opened the doors of the van and let a fan blow on the container. July 18, 1967, was a Tuesday, and the evidence reflects that tire president of plaintiff returned from a business trip on Friday afternoon, and that the container was opened on the next day, Saturday, when the damage to the parts was discovered. The loss to the parts was caused by moisture resulting from rust and pitting of certain parts, and of the total shipment 33 Spindles, all 19 of the Body Assemblies and 92 of the Piston and Rod Assemblies were damaged to the extent that they were damaged beyond repair and could not be used for the purpose for which they were manufactured. “3. The evidence reflects that all of the parts ordered and purchased by plaintiff were overrun parts manufactured by Electrol, Inc., the bankrupt company from which Huctrol, Inc., bought these parts. The evidence further reflects that Huctrol, Inc., desired to discontinue the handling of this type of merchandise, and this company sold all of these aircraft parts to the plaintiff for the sum of $100.00, and that they were shipped to plaintiff in an ‘as is’ condition. “4. Plaintiff introduced evidence of sales of these parts in 1961 through 1962, attempting to establish a market price at that time in the amount of $5,547.98. Plaintiff also introduced testimony that the replacement cost of the items damaged as of April 16, 1969, would be $9,713.00 and that the cost of replacing these parts in July, 1966 [1967?], would be a sixty percent of this figure or $5,827.80. The evidence further reflected that plaintiff expended $136.00 to salvage those parts which were not damaged beyond repair, and which plaintiff still has in its possession and in a usable condition. The evidence further reflected the plaintiff sold two Spindles on January 27, 1969, at $52.50 each, this being the only sale of any of the usable parts it had made from July 17, 1967, to the date of trial on April 17, 1969. “5. The evidence reflects that the parts ordered and purchased by plaintiff for $100.00 were surplus replacement parts for the Cessna 210 Airplane manufactured by Cessna during the period 1959 through 1961, and that from 800 to 900 of this particular model aircraft was manufactured by this company. No evidence was introduced as to how many of this particular model were in service and still flying in July, 1967. “CONCLUSIONS OF LAW “1. The Court finds that 33 Spindles, 19 Body Assemblies and 92 Piston and Rod Assemblies were damaged beyond repair, and that the damage was caused by the negligence of the defendant in allowing the container containing these parts to be exposed to the rain while it was in its possession. “2. The only question to be resolved is the amount of damages to be awarded to plaintiff for this loss. Plaintiff contends that the loss should approximate either the market price of these items as sold by Electrol, Inc., in 1960, 1961, and 1962, or by the replacement value as testified to by its expert, Mr. Joseph P. Orth, these amounts ranging from $5,547.98 to $5,827.80, the defendant contending that the purchase price is what the damages should be confined to as paid by the plaintiff for these items in the amount of $100.00 and possibly the amount of money expended by plaintiff to salvage the parts not damaged and which it now has in its possession. “3. The Court is of the opinion that to award plaintiff replacement costs of these parts or a value based upon sales made in 1960, 1961, and 1962, would be allowing plaintiff recovery for loss of profits which would be uncertain, conjectural and highly speculative. The evidence reflected that only one sale of two of these parts had been made by plaintiff in the 20 month period from July, 1967, to April, 1969, the date of the trial, and no evidence was offered by plaintiff upon which the Court could make any reasonable assumption that there was and would be a market for the sale of these parts, except possibly on a very occasional basis. The general rule is in this type of action that lost profits will be allowed only if there is loss proved with a reasonable degree of certainty. “4. The rule is stated in 22 Am. Jur. 2d, Par. 172, at p. 243 as follows: 'As thus indicated, this is primarily .a problem of proof, the complaining party being required to submit sufficient proof of the loss of profits so that the trier of fact can find with reasonable certainty the fact and amount of lost profits. No recovery can be had for loss of profits which are determined to be uncertain, contingent, conjectural, or speculative. Thus, no recovery can be had for loss of profits where it is uncertain whether any profit at all would have been made by the plaintiff.’ “5. The Court is of the opinion that judgment should be entered for damages for the plaintiff and against the defendant in the amount of $236.00, being the purchase price of all of the parts purchased by plaintiff and the cost of salvaging the items that were not damaged beyond repair and now in plaintiff’s possession, realizing that plaintiff still has the use and benefit of the remaining Spindles and Piston and Rod Assemblies.” Appellant’s contentions are renewed here that it should have recovered either market or replacement cost. Although the two are closely interrelated under the facts in this case, we shall deal with them in order. As we read the trial court’s conclusions they are pregnant with the concept that appellant failed to show that there was any market for the damaged parts in 1967. The sales in 1960, 1961, and 1962 were rejected as being too remote in time to establish a market in 1967, and the isolated sale in 1969 — the only one in twenty months— was regarded as insufficient to establish a market “except possibly on a very occasional basis.” This amounts to a finding that, on this issue, appellant failed to meet its burden of proof. Such a negative finding is binding on this court on appellate review, since we cannot say that it was arbitrary or capricious. See American Housing & Investment Co. v. Stanley Furniture Co., 202 Kan. 344, 449 P. 2d 561. In reaching this conclusion the trial court was applying textbook law. Thus, “Market value means, generally, the price for which an article is bought and sold, and is ordinarily best established by sales in the ordinary course of business. In order for it to be said that a thing has a market value, it is necessary that there shall be a market for such commodity — that is, a demand therefor and an ability from such demand to sell the same when a sale thereof is desired. Where, therefore, there is no demand for a thing and no ability to sell the same, then it cannot be said to have a market value, and the recovery in such case is generally its actual value or, as in the case of portraits, heirlooms, etc., its value to the owner.” 22 Am. Jur. 2d, Damages, § 146, p. 212. See also 25 C. J. S., Damages, § 88. As the above authorities recognize, lack of market value is not necessarily fatal to a claim for substantial compensatory damages for the destruction of property (although it proves to be here). We recognized this as early as Atchison, T. & S. F. R. Co. v. Stanford, 12 Kan. * 354, Syl. ¶ 6. And see Hollinger v. Railway Co., 94 Kan. 316, Syl. ¶ 4, 146 Pac. 1034. We have said: “Generally speaking, it may be said that one whose property is negligently destroyed by another is entitled to recover the actual loss sustained. . . . If there be no market value, then another criterion of value must be found, and the best evidence which can be obtained must be produced to show the elements which enter into the real value.” Kennedy v. Heat and Power Co., 103 Kan. 651, 652-653, 175 Pac. 977, 7 A. L. R. 274. We do not deem a treatise on the law of damages necessary to the disposition of this case. An extension annotation on the measure of damages for conversion or loss of, or damage to, personal property having no market value appears at 12 A. L. R. 2d 902. See also, 25 C. J. S., Damages, §§ 88-90; 22 Am. Jur. 2d, Damages, §§ 148-151. Factors considered as relevant to damages where no “market” obtains include cost of repair, original cost, “intrinsic” value, loss of use, any special value to the owner, the loss of expected profits, and the cost of replacement. Only the last two concern us here. Reproduction cost, the measure urged by appellant here as an alternative to market value, is considered relevant where property has some unique quality making it particularly valuable to the owner. See generally anno., 12 A. L. R. 2d 902, § 5. The rule seems to be particularly applicable to items having an intimate, even sentimental, relationship to the owner, and to ships, dredges, machine tools and dies, and similar items constructed for a particular purpose and used in producing revenue. Indeed, we have held as to such an item — a specially constructed truck — that loss of anticipated profits may be added to the value of the property, if such loss is reasonably ascertainable and is not “speculative or problematical.” Peterson v. Bachar, 193 Kan. 161, 392 P. 2d 853. Compare Billups v. American Surety Co., 173 Kan. 646, 251 P. 2d 237, where evidence of anticipated profits from a damaged truck was held properly excluded because too remote. As the court below correctly noted, the primary problem in this area is one of proof. At this point the finding of “no market,” or lack of proof, deals a mortal blow to appellant’s alternative theory. The trial court’s conclusion that to award replacement cost would amount to an award of profits, while not fully articulated, is soundly premised. The airplane parts had no special value or usefulness to appellant nor any revenue producing character except as part of its stock in trade. If appellant recovered replacement cost it would in effect have made a sale of the parts to the appellee when, as the trial court found, on the basis of the evidence produced the prospect of a sale to any other customer was highly speculative. It seems improbable that if appellant were to recover replacement cost it would in fact replace the parts and indulge in such speculation. While this factor would not militate against recovery for an item having special value to the owner — such as custom made furniture or wearing apparel — it is relevant where the items are simply inventory having no market value. The story that springs from the record is that appellant’s president went bargain hunting, and thought he had found one in this distress merchandise. The trial court obviously viewed appellant’s venture as a low risk flier in which, if one or two sales were forthcoming, it would recoup its entire cost. Any additional sales would be pure gravy. As to a substantial portion of the merchandise appelant is still in that position, having made one sale for more than its total investment and having in addition been awarded its full purchase price for the entire lot by the trial court. If it could be converted into an immediate sale of the balance of the lot, the fortuitous rain would be not mere moisture but manna from heaven. It is true that the result we reach deprives appellant of a portion of its speculative position in this particular commodity. However, it still owns, at no cost, a substantial portion of the merchandise. If the sanguine expectations of appellant’s president prove to be justified it will still reap a substantial profit. Had it proved a reasonable basis for those expectations at trial the harvest would already be in. If, on the other hand, the merchandise merely gathers dust in appellant’s warehouse, it will be no worse off than if it had never embarked on the venture. On the record made below we think this is as advantageous a position as it might expect. Appellant urges that if there is to be a windfall it should not gO' to the wrongdoer but to the injured party. We would agree, if there is to be a windfall. An award of damages, however, is not designed to afford either party a windfall but to compensate for injuries suffered and proved. We think the trial court’s judgment did just that, and it is therefore affirmed. APPROVED BY THE COURT.	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The opinion of the court was delivered by Fatzer, J.: The appellant, Mae McLaughlin, was charged as a principal, tried to a jury, and convicted of the offense of grand larceny (K. S. A. 21-533), and sentenced to the Kansas State Industrial Farm for Women, Lansing, Kansas, there to be confined for a period not to exceed seven years. The companion case is reported as State v. McLaughlin, 207 Kan. 594, 485 P. 2d 1360. The testimony relative to the events surrounding the crime is conflicting in many respects, and the events set forth herein are summarized and reported as found by the jury. Freddie Pope, a confessed accomplice to the crime and the state’s principal witness — indeed, its only witness to the “facts” of its perpetration — became acquainted with the appellant’s husband, Henry McLaughlin, some months prior to the commission of the offense. Pope is a hardened criminal of considerable experience in “underworld” affairs, who has accumulated a lengthy record of convictions of previous felony offenses. He has spent eleven years in prison, where he became the “jail-house lawyer” and wrote writs for other inmates. He is no amateur at representing his own interests in criminal proceedings in court, and was singularly successful in securing probation from the confinement portion of the district court’s sentence following his plea of guilty on July 18, 1969, to the crime here involved, two days after he testified against Mae and Henry McLaughlin at their preliminary examinations. On Sunday, July 23, 1967, two black angus steers owned by Karen Pike and a hereford steer owned by Kenneth Pike, disappeared from the corral at Pike’s barn located on a farm leased by him south of Eureka, Kansas. Pike last saw the cattle at 9:30 p. m. on that date. The next day he discovered the cattle were missing. According to Pope, on Saturday, July 22, 1967, he visited with the McLaughlins at a fair in Anthony. When he returned to his home in Wichita that night, he learned the police were looking for him, and he made a hasty exit from the city. Accordingly, Pope and his colleague in crime, Johnnie Wyss, drove to McLaughlin’s home in Greenwood County, near Rosalia, where, with Henry’s permission, they spent the night. The next morning, Sunday, July 23, Mae fixed breakfast for Pope, Wyss and Henry in her trailer house which was parked adjacent to Henry’s house. Later that day, all of the parties decided to go for a Sunday drive, the bizarre purpose, according to Pope, was to search for antique bottles and jars in abandoned farm homes in the Eureka community. Henry’s car served as the means of conveyance. After some driving and searching, they arrived at the Pike farm. Pope and Wyss commenced searching outbuildings; Henry checked the barn, and Mae looked about the farm yard and then returned to the car. Henry summoned Pope to the barn where the steers in question were found. A conversation then occurred between Pope and Henry out of Mae’s presence, to the effect that Pope told Henry it looked to him like someone stole the cattle and hid them there until they could dispose of them. Henry said in effect do you think we could steal them, and Pope replied that they could if they had the means to haul them off. As hereafter noted, Mae’s objection to such testimony, upon the grounds the statements were made outside her presence and were not binding upon her, was overruled. However, the entire conversation was heard by the jury before the court sustained the objection and instructed the jury to disregard it. After Pope and Henry agreed to steal the steers, the parties returned to Henry’s residence and Pope and Wyss left in Pope’s station wagon for his home in Wichita to get Pope’s pickup truck. Both men then drove to the Jim Frisbie place near Andover, in Butler County — Wyss in the pickup and Pope in the station wagon— where, after finding no one at home, they hitched Frisbie’s four-horse trailer to the pickup and proceeded back to Henry’s residence. Upon arrival at the McLaughlin residence, Pope, Wyss and Henry went into Mae’s trailer and had coffee and a couple of cans of beer and waited for darkness. After it was dark, Pope, Wyss, Mae and Henry left for the Pike farm. Henry drove his car and Mae and Pope were passengers; Wyss followed in the pickup pulling the trailer. Upon arriving at the Pike farm, the trailer was backed up to the barn, and Pope, Henry and Wyss loaded the cattle into the trailer. Pope then told Wyss to drive the steers to Frisbie’s farm. Henry, Pope and Mae followed in Henry’s car. Upon arriving at Frisbie’s farm, Pope and Wyss unloaded the steers into the bam, and the parties returned to their respective homes. The following morning, Monday, July 24, 1967, Pope called Henry on the telephone and advised him he had made arrangements to have the steers slaughtered at the Haysville Packing Plant. Henry met Pope about 9:00 a. m. at the Frisbie place, and Pope and Wyss loaded the steers into the pickup and drove to the packing plant where they were unloaded in the slaughter room. The steers were booked and processed in Pope’s name, and he arranged for the hides to be returned to him. Later that same day, Pope, Henry and Frisbie returned to the packing plant in Henry’s automobile, picked up the hides, and disposed of them. Eight or ten days later, Pope was advised the beeves had been processed. Pope relayed the message to Henry and he and Mae met Pope at the Frisbies, where Henry gave Pope his check for $130 representing payment of the butchering and processing fee. Mr. and Mrs. Frisbie, Henry, Mae and Pope drove to the packing plant where two orders were loaded into Frisbie’s truck for Pope and Frisbie, and the third order was loaded into Henry’s car. Frisbie received Wyss’s beef because he had no place to store it. This in essence constituted the state’s case. The case on behalf of the appellant is summarized: There was no evidence Mae had any criminal record. She first saw Pope at the horse races in Anthony in July, 1967. On Sunday, July 23, 1967, Mae and Henry were eating dinner with their old friends, Mr. and Mrs. Jim Frisbie at their home near Andover, when Pope and Wyss appeared. Pope said his mother was selling her place and he had some cattle he wanted to sell. Frisbie is a yardmaster for the Santa Fe Railway at Wichita, and told Pope if Henry looked at the cattle and thought they were all right, he would buy one. Mae and Henry returned to their home, and Pope and Wyss followed. At Rosalia, Pope, Wyss, Henry and Mae got into Mae’s automobile and Pope directed her to a farm somewhere south of Eureka. Upon their arrival, Pope, Wyss and Henry got out and looked at the steers and after inspecting them, they returned to the McLaughlin residence and Pope and Wyss left in Pope’s car. Pope and Wyss did not spend the previous night with the McLaughlins as testified by Pope; neitiher did Mae fix either Pope or Wyss a meal, and they did not go on a search for antique bottles and jars. Mae’s testimony was corroborated throughout by Wyss, and Wyss testified that Mae was not present when the steers were taken. The following morning, Monday, July 24, Henry and Mae drove to Wichita. On their way home, they stopped at Frisbie’s home at about 10:00 or 11:00 a. m. While there, Pope and Wyss came by and said the steers had been delivered to the locker plant. Pope said he wanted $200. Mae wrote a check for that amount for one beef, Henry signed it, and the check was given to Pope. Frisbie gave Pope $200 in cash for one beef, and the third beef was to be Pope’s. Defendant’s Exhibit 9 was identified as the $200 check given to Pope for the beef. However, the evidence showed the check had been altered. It originally bore the notation “machine hire,” but was altered by Mae to “butchered beef” after it was returned from the bank. The check was dated July 24, 1967. There was evidence that Henry paid Pope’s and Frisbie’s share of the processing fee since Pope had delivered the steers and Henry was indebted to Frisbie on a horse trade; that Henry wrote a check to Frisbie for $130 to pay the fee; that Frisbie cashed the check at his mother’s, and the packing plant was paid in cash. The appellant complains of numerous errors occurring at the trial. She first contends the district corut erred in instructing the jury that conviction could be sustained if based upon the uncorroborated testimony of an accomplice. Instruction No. 9 reads: “The court instructs the jury that the testimony of parties aiding, assisting, encouraging, and abetting the crime is admissible; yet their evidence when not corroborated by the testimony of others not implicated in the crime, as to matters material to the issue, should be received with great caution by the jury, and they should be fully satisfied of its truth before they should convict the defendant on such testimony.” In 30 Am. Jur. 2d, Evidence, § 1151, pp. 327, 328, it is said: “. . . [A]t common law, it is well settled that the testimony of an accomplice, although entirely without corroboration, will support a verdict of conviction of one accused of crime unless the testimony of the accomplice appears on its face to be bold, perjury, preposterous, or self-contradictory. The common law rule has, however, been changed in many jurisdictions, generally by statutes expressly declaring that the uncorroborated testimony of an accomplice cannot sustain a conviction.” Kansas has no statute which prevents conviction on the uncorroborated statements of an accomplice. In State v. McIntyre, 132 Kan. 43, 294 Pac. 865, it was said: “. . . [I]t is now well settled that the uncorroborated testimony of an accomplice, if otherwise sufficient, will sustain a verdict of guilty. The credit to be given to the evidence is a matter for the determination of the jury . . .” (l. c. 48.) See, also, State v. Carter, 148 Kan. 472, 83 P. 2d 689; State v. Peasley, 179 Kan. 314, 295 P. 2d 627, and State v. Wood, 196 Kan. 599, 413 P. 2d 90. The jury was adequately cautioned by Instruction No. 9 as to the weight to be given Pope’s testimony. Thereafter, the weight of the evidence and the credibility of the witnesses was solely a matter for the determination of the jury. Moreover, the record indicates the instruction was submitted by the appellant’s trial counsel, and she is in no position to complain. In addition, there was testimony that, if believed by the jury, the appellant altered the check allegedly given as payment for the stolen steers. She may not complain if the jury believed the state’s witnesses, rather than her own. It is next contended the district court’s definition of reasonable doubt was erroneous, and that a new trial should be granted. Specifically, the appellant complains of that part of the instruction which reads: “. . . [Y]ou are instructed that reasonable doubt is just what the words themselves imply — a doubt founded on reason. It is such a doubt as a juror is able to give a reason for.” An instruction of very similar language was approved in State v. Patton, 66 Kan. 486, 71 Pac. 840, and it cannot be said that error was committed by the district court. See State v. Wolfley, 75 Kan. 406, 89 Pac. 1046, and State v. Killion, 95 Kan. 371, 148 Pac. 643. The appellant complains the district court erred in permitting hearsay evidence over her objection. As indicated, the state’s principal witness, Pope, was allowed to testify to the substance of a conversation held between him and Henry in the barn at the time the steers were discovered. That conversation related to the plan to steal the steers, and was had out of the presence of the appellant. We think no error was committed. In State v. Borserine, 184 Kan. 405, 337 P. 2d 697, it was said: “Ordinarily when acts and declarations of one or more co-conspirators are offered in evidence against another co-conspirator by a third party witness or witnesses, the conspiracy should first be established prima facie, and to the satisfaction of the trial judge. But this cannot always be required. Where proof of the conspiracy depends on a vast amount of circumstantial evidence — a vast number of isolated and independent facts — it cannot be required. In any case where such acts and declarations are introduced in evidence, and the whole of the evidence introduced at the trial taken together shows that a conspiracy actually exists, it will be considered immaterial whether the conspiracy was established before, or after, the introduction of such acts and declarations. (State v. Winner, 17 Kan. 298.) Evidence of the acts and declarations of the co-conspirators, done and made in the absence of the accused, is admissible so far as it pertains to the furtherance of the common criminal design, to its consummation, to the disposition of its fruits, and to acts done to preserve its concealment, as an exception to the rule against the admissibility of hearsay evidence.” (l. c. 410.) (Emphasis supplied.) As indicated, Pope’s testimony was first admitted and then stricken with instructions by the district court to the jury to disregard “the conversation between the witness and Mr. McLaughlin.” If the introduction of the evidence was improper, the district court in clear language admonished the jury to disregard it, and we think no prejudicial error occurred. . The appellant further contends the evidence was insufficient to establish she aided and abetted in the commission of the crime, or was a second degree principal, and that it was insufficient to establish felonious intent. The point is not well taken. The evidence clearly establishes that the appellant was present at the time the crime was committed. By her own admission, she was present when the beeves were picked up at the processing plant. Likewise, there was testimony showing she altered the check after it had been cashed in an attempt to make it appear the check was given to Pope in payment for a portion of the beef, which alteration would serve to substantiate her story. Intent is seldom capable of direct proof and may be proved from surrounding circumstances. (State v. Linville, 150 Kan. 617, 95 P. 2d 332.) Under the circumstances, the jury was entitled to consider such evidence, along with other incriminating factors, and if believed, the evidence was sufficient to sustain a conviction of the crime charged. The judgment is affirmed.	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The opinion of the court was delivered by Price, C. J.: This law suit between two neighboring landowners was an action to quiet title to certain land immediately north of the Kansas (Kaw) River in Leavenworth county. Judgment was for defendant Olander, and plaintiffs Rieke have appealed. The pleadings — which brought into issue the respective claims of the parties — need not be detailed. The land in dispute was the northeast quarter of section 27-12-22 lying north of the river. Much of it was the result of accretion from periodic flooding — particularly the great flood of 1951. Section 22-12-22 is directly north of section 27, and defendant was the owner of the southeast quarter of that section. Plaintiffs were the owners of the northwest quarter of section 27. It will be seen, therefore, that the quarter in dispute is adjacent to and directly south of the quarter owned by defendant in section 22. Considerable evidence — including maps and aerial photographs— was introduced. It would add nothing to this opinion to discuss the evidence at length. It established that as far back as the 1930’s defendant’s father and other predecessors in title had from time to time farmed portions of the property in dispute — depending upon the whims of the river — and that they had cut and removed timber from it and had pastured livestock on it. The “understanding” in the neighborhood was that defendant was the owner. A north-south fence running through the middle of the section had been erected and maintained, but plaintiffs had cut a portion of it. At the conclusion of the trial the court found that defendant Olander and his wife were the owners of the disputed land — being the northeast fractional quarter of section — and all accretions lying directly south of such fractional quarter extending to the north bank of the river, and that they and their predecessors in interest had been in the open, adverse, continuous and exclusive possession of such land for more than fifteen years under claim of title — and entered judgment quieting their title to the same. In addition, defendant was granted a money judgment for $35.00 for cost of repairing the fence in question. In this appeal plaintiffs contend the trial court erred in finding that defendant was the owner of the accretion land in dispute by virtue of adverse possession because he was not in continuous, actual, open and notorious possession of it, and that adverse possession could not extend constructively to the newly created accretion lands. Our law of adverse possession is based on K. S. A. 60-503 which provides that no action shall be maintained against any person for the recovery of real property who has been in open, exclusive and continuous possession of such real property, either under a claim knowingly adverse or under a belief of ownership — for a period of fifteen years. The underlying principle of that statute has long been the law. It has been held many times that adverse possession is largely a matter of intent — coupled of course — with overt acts on the part of claimant; that acts, in order to constitute adverse possession, are relative to the type and nature of the property and surrounding circumstances, taking into consideration the particular land, its condition, character, locality and appropriate use; and that whether one has acquired title by adverse possession is a question of fact to be determined by the trier of the facts, and the determina tion so made, if based on substantial evidence, is binding on appeal. See Tucker v. Hankey, 173 Kan. 593, 250 P. 2d 784; Ames v. Brooks, 179 Kan. 590, 297 P. 2d 195; Truck-Trailer Supply Co. Inc. v. Farmer, 181 Kan. 396, 311 P. 2d 1004; Manville v. Gronniger, 182 Kan. 572, 322 P. 2d 789 and Walton v. Unified School District, 203 Kan. 415, 454 P. 2d 469. There was much substantial evidence before the trial court to support its finding of adverse possession, and such finding is not to be disturbed on appeal. On this point — as stated above, plaintiffs also contend that any adverse possession could not extend constructively to the newly created accretion land. The rule is to the contrary. In 2 C. J. S. Adverse Possession § 205, p. 806, it is stated— “Accretion. The title to an accretion follows the title of the riparian land to which it is attached regardless of whether the latter title was acquired by deed or adverse possession. Where accretions are formed to riparian lands held adversely, the tide of claimant after the bar of the statute has attached carries with it tide to the accretions formed during the statutory period. This is true, however recent die formation.” To the same effect is 3 Am. Jur. 2d Adverse Possession § 203, p. 293, where it is said that the ownership of accretions may be acquired by adverse possession and that one who has acquired title to land by adverse possession is entitled to any accretions thereto, regardless of the time of formation. Here it is clear that for many years more than the fifteen required, defendant and/or his predecessors in interest occupied, used and possessed the farm all the way to the north bank of the river, including accretions as they periodically occurred. Plaintiffs’ other contention is that the trial court erred in failing to find that they and defendant were owners of the disputed land by reason of their being the sole adjacent riparian owners to the accreted land, and that the court further erred in failing to quiet the title in them and defendant in accordance with such a finding— including apportionment of the accretion land in dispute. In support they cite Stark v. Meriwether, 98 Kan. 10, 19, 157 Pac. 438, Ann. Cas. 1918 E 993, in which this court recognized the rule that with respect to accretions — absent such inequalities as to make it inequitable — it is proper to give riparian proprietors a frontage on the new shore proportional to their frontage on the old one, connecting the respective points by straight lines. As applied to the facts here the Stark case is of no help to plain tiffs. Extending the straight line constituting the center line of section 27 to the north bank of the river would result in the exact ownership as determined by the trial court. Accretion took place in the west half of section 27 as well as in the east half. Plaintiffs received the benefit of such accretion in the west half and in this action attempt to project eastward onto defendant’s land — as well as southward. Despite the various contentions made in this case — examination of the record discloses that the real underlying dispute appears to be over accretions to defendant’s land resulting from periodic flooding of the river — and, as stated — particularly the flood of 1951. We think the conclusions reached by the trial court were correct, and the judgment is affirmed.	[ -12, -18, -7, 12, -120, -32, 40, -102, 73, -95, -12, 83, 111, -56, 4, 125, -57, 13, -15, 105, -58, -73, 31, -62, -42, -77, -13, -51, -70, -35, -12, 71, 72, 16, 74, 85, -62, -32, -115, 92, -50, 6, -119, 85, -63, 64, 60, 107, 82, 74, 53, -81, -13, 43, 21, -29, 41, 44, -117, 44, 1, -8, -70, 95, 95, 16, 1, 36, -104, -127, 72, 10, -112, 49, 8, -24, 115, 34, -122, 117, 5, -101, 40, -26, 99, 33, 124, -17, -20, -103, 14, -39, -115, -90, -112, 88, 66, 32, -74, -99, 117, 16, 7, 118, -18, 5, 31, -24, 7, -53, -106, -77, -49, 60, -119, -121, -53, -125, 51, 112, -53, -30, 78, 71, 112, -65, -113, -71 ]
The opinion of the court was delivered by Kaul, J.: The defendant-appellant (Patricia A. Frizzell) appeals from a conviction by a jury on two counts of grand larceny as defined in K. S. A. 21-533 [now K. S. A. 1970 Supp. 21-3701]. Defendant raises two contentions on appeal. She first claims the trial court erred in admitting an admission against interest ob- tamed from her by a Highway Patrol Trooper. She says the admission was obtained without any explanation of her constitutional rights and while she was under substantial restraint of liberty. Her second point is that the trial court erred in overruling defendant’s motion to suppress certain evidence and later in admitting that evidence at the trial. There is little dispute about the facts. On November 7, 1969, Trooper Gonzales, of the Kansas Highway Patrol, was assisting other troopers in conducting a driver’s license check lane south of Hutchinson. Gonzales testified that he observed a 1968 Oldsmobile approach within approximately 400 feet of the check lane at a slow rate of speed. It pulled into a driveway, turned around, and proceeded in the opposite direction. Gonzales followed and stopped the automobile for the purpose of checking the operator’s driver’s license. The driver was one Ronnie G. Whitehead. The passengers were Ola Mae Roberson, in the front seat, and defendant (Patricia A. Frizzell), in the rear seat. Gonzales approached the vehicle on the driver’s side and asked Whitehead to produce his driver’s license. Whitehead replied that he had left his license at home. Gonzales testified that he proceeded to explain to Whitehead the procedure, whereby he would issue a citation to Whitehead which could later be cured by the production of his driver’s license. During the course of the conversation, Gonzales saw a mound on the rear seat, directly behind the driver, which he described as covering the rear seat and was about two and one-half feet long, two feet high, and covered by a lady’s coat. He further testified that he thought at first that the coat might be covering a body, then he saw two sleeves dangling from beneath the coat with what appeared to be a department store price tag attached by a string to one of the sleeves. While continuing the conversation with Whitehead about his driver’s license, Gonzales saw defendant take another coat and place it upon the coat that was covering the mound and pull it down over the mound. At this juncture, he observed Ola Mae Roberson, the passenger in the front seat, turn around, reach back between the bucket seats, and push the protruding sleeve and price tag under the covering coat. At this point, without directing the question to any particular person, Gonzales asked “what was situated in the rear.” His testimony thereafter appears as follows: “Q. How many times did you ask? “A. Three times that I know of. “Q. And did you ever get an answer? “A. Yes, sir, I did. “Q. Who gave you that answer? "A. Miss Frizzell. “Q. What did she say? “A. She stated the clothing was hers, and they had been on a trip, or was going on a trip, I don’t recall which. “Q. All right, did you ask her anything after you received this information? “A. I asked why they didn’t have any luggage, and I never did get an answer. “Q. Did you ever get an answer to that? “A. No, sir, I didn’t.” Whitehead was then asked to accompany Gonzales to the patrol car where he (Gonzales) radioed for assistance. He was Informed that immediate assistance was unavailable. Gonzales returned to the Oldsmobile. Gonzales described the ensuing events as follows: “A. As I was approaching the vehicle, through the rear window I could see the passenger in the front, she had been turned to her left and I could see her turn back around and she was placing or had some activity in the front part of her body. “Q. What did you do then after you approached the vehicle? “A. After I approached the vehicle I asked the ladies if they had any identification. “Q. Did you receive any? “A. I believe I received a driver’s license from the passenger in the front, and the lady in the rear states she didn’t have any identification with her. “Q. What did you do after you made these inquiries? “A. Well, I asked the ladies if they would exit the vehicle, which they consented to do, and they exited the vehicle on the right side, and we waited there until Trooper Keffer could arrive.” Trooper Keffer arrived in about five minutes. Gonzales then entered the automobile and found new articles of clothing beneath the coats in the back seat. The clothing consisted of seven or eight ladies’ dresses and three or four mens suits. It was later determined that the dresses had been stolen from Pegues Department Store and the suits from the J. C. Penney Store in Hutchinson. Defendant was charged with two counts of grand larceny. On direct examination Gonzales, over defendant’s objection, was allowed to relate her admission that the clothing was hers. Defendant claims this was reversible error since she had not been advised of her rights under the rule of Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A. L. R. 3d 974. A short answer to defendant’s contention is that the general query directed to the occupants of the automobile, which finally brought forth defendant’s answer, did not constitute custodial interrogation as defined in Miranda. Under the circumstances attendant here, the question put by Gonzales to the occupants of the automobile was nothing more than routine, on-the-scene questioning. When the question was posed the investigation had not “focused” on any particular person, nor had Gonzales determined that a crime had been committed. Defendant was under no compulsion to answer. In fact, the further question by Gonzales concerning the absence of luggage was not answered by anyone. Gonzales was discussing the driver’s license problem with Whitehead when he noticed the mound and put the question. The circumstances surrounding the inquiry clearly fall within the realm of routine on-the-scene questioning. Gonzales had neither done nor said anything which could be said to have deprived defendant of her freedom of action in any significant way. The distinction between custodial interrogation, as defined in Miranda, and on-the-scene questioning is recognized in the opinion itself. The Miranda court noted that the decision was not intended to hamper the traditional function of police officers investigating crimes and that general on-the-scene questioning was not affected by the holding. This court has recognized the distinction, drawn in Miranda, between custodial interrogation and on-the-scene questioning in two recent cases. See State v. Porter, 201 Kan. 778, 443 P. 2d 360, cert. den., 393 U. S. 1108, 21 L. Ed. 2d 805, 89 S. Ct. 919, and State v. Phinis, 199 Kan. 472, 430 P. 2d 251. In Porter it was held: “By custodial interrogation is meant the questioning of persons by law enforcement officers which is initiated and conducted while such persons are held in legal custody or are otherwise deprived of their freedom of action in any significant way.” (Syl. ¶ 1.) In Phinis investigatory facts and admissions, elicited by officers on-the-scene, are clearly distinguished from custodial interrogation as defined in Porter. We hold the admission by defendant that the mound consisted of clothing belonging to her came about during routine on-the-scene questioning at a time when defendant was not under compulsion and when she was not deprived of her freedom in any significant way. Discussions of the distinction between oii-the-scene questioning and custodial interrogation, in harmony with our holding, may be found in Lowe v. United States (9th Cir. 1969) 407 F. 2d 1391; United States v. Gibson (4th Cir. 1968) 392 F. 2d 373; and Allen v. United States (District of Columbia Circuit, 1968) 390 F. 2d 476. Defendant’s contention concerning the admission of the clothing into evidence was first raised by a motion to suppress evidence. The abbreviated abstract before us does not disclose the proceedings; however, we glean from the trial court’s memorandum that a full scale hearing was had on the motion to suppress. Apparently, Gonzales gave essentially the same testimony on the hearing of the motion as that given at the trial, which is reflected in the record before us. In its memorandum decision, denying the motion to suppress, the trial court recited the items seen and heard by Gonzales and then applied — we believe correctly — the reasonable man test in these words: “. . . To determine whether there was probable canse to make a search without a warrant the court must first determine the sufficiency of knowledge by the police officer, by comparison to what a reasonable man knowing all the facts which the police officer then knew, would have believed under all the circumstances. . . .” The trial court concluded as follows: “In reviewing the facts and circumstances in our current case this court is of the opinion there was sufficient probable cause to justify a search of the defendant’s car. Again, local stores customarily remove the price tags and then box or place in cellophane wrappers any clothing that they sell.” Under the provisions of K. S. A. 8-244 Gonzales was lawfully authorized to stop the automobile to check the operator’s driver’s license. (7 Am. Jur 2d Automobiles and Highway Traffic, § 98, pp. 668-669; 5 Am. Jur 2d Arrest, § 43, pp. 733-734; 25 A. L. R. 3d, Annotation, p. 1076.) It is clear, Gonzales did not stop the vehicle as ruse or subterfuge to see what was in it, but rather as a good faith effort to check the driver’s license. Defendant was not arrested when the automobile was stopped nor at any time during the observations made by Gonzales. Thus, the reliance of defendant on Henry v. United States, 361 U. S. 98, 4 L. Ed. 2d 134, 80 S. Ct. 168, is misplaced. Gonzales was lawfully at the driver’s window when he looked into the automobile and saw and heard the actions and items, which we believe ripened into the necessary probable cause to sustain his subsequent search. This court has held that looking into a car window is not a search because a search implies prying into hidden places for that which is concealed, and it is not a search to see that which is in open view. Objects in plain view of an officer are subject to seizure and may be introduced into evidence if the facts and circumstances warrant the officer in believing that those objects are fruits, evidence or instrumentalities of a crime. (State v. Wade, 206 Kan. 347, 479 P. 2d 811; State v. McMillin, 206 Kan. 3, 476 P. 2d 612. See, also, Harris v. United States, 390 U. S. 234, 19 L. Ed. 2d 1067, 88 S. Ct. 992, and Williams v. United States [5th Cir. 1968], 404 F. 2d 493.) The eye cannot commit a trespass condemned by the Fourth Amendment, and observation of objects and actions in the plain view of an officer is not a search. (State v. Blood, 190 Kan. 812, 378 P. 2d 548.) We hold that the plain view doctrine applies not only to obj'ects, but to actions observed. Recounting the facts and circumstances observed and heard by Gonzales, prior to his search of the vehicle, he saw — The vehicle avoid the driver’s license check lane; the defendant put a coat over the pile of clothing in an effort to cover it up, the price tag dangling from the sleeve; the front seat passenger put the sleeve under the coat; he received evasive answers or silence in response to his questions. Finally, after placing Whitehead in the patrol car, he noticed the front seat passenger (Roberson) performing some activity with the pile, as if to hide something. Gonzales saw a continuous period of activity concerning what was under the coat in such a manner as to indicate that the occupants were trying to hide something. There was no search and seizure until Gonzales entered the vehicle and took the coat off the pile. Looking to all the facts and circumstances known to Gonzales at that time, we believe that he had probable cause for a search. This court set out the requisites of probable cause in State v. Little, 201 Kan. 94, 439 P. 2d 387, where we said: “. . . Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that a felony has been or is being committed by the person to be arrested, (citing cases.)” (p. 96.) Defendant makes a point that Gonzales used the word “curious” in describing his impression of the coat covered mound. Regardless of how he described his impression at the time Gonzales, from his subsequent observations, became convinced the coat covered contraband. The trial court heard Gonzales relate his observations and describe his impressions on two occasions and reached the conclusion there was probable cause for a search. Having heard Gonzales first hand and in person, the trial court was in a far more favorable position to evaluate his testimony in this regard. Measured by the standards of the reasonable or prudent man rule, we believe the facts and circumstances within the knowledge of Gonzales were sufficient to give him probable cause to believe there was contraband or other items, which offend against the law, under the covering coat at the time he entered the automobile. It follows that the search of the automobile and subsequent seizure of the articles of clothing did not violate defendant’s Fourth Amendment right to be free from unreasonable search and seizure. The judgment is affirmed.	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The opinion of the court was delivered by Kaul, J.: This case originated in the juvenile court of Ford County pursuant to the provisions of the Juvenile Code (K. S. A. 38-802, et seq., [now 1970 Supp.]). The parental rights of Karen G. Armentrout Jones, the natural mother of Starlette Armentrout, were severed and Starlette was made a ward of the Ford County Social Welfare Department by the juvenile court. An appeal by Mrs. Jones and a trial de novo in the district court resulted in a similar judgment. Thereafter Mrs. Jones perfected this appeal. The controlling question is whether there is sufficient evidence to support the district court’s finding that Mrs. Jones was “unfit” as that term is used in K. S. A. 1969 Supp. 38-824 (c) [amended, now K. S. A. 1970 Supp.]. On April 19, 1968, a juvenile officer filed a petition alleging that Starlette Armentrout (hereafter referred to as Starlette) was in the hospital in Greensburg and, although in need of further hospitalization, her parents were threatening to remove her from the hospital against the orders of the child’s physician. The petition prayed for an immediate emergency order making Starlette a ward of the juvenile court. An order was entered on the same date and the juvenile court placed Starlette in the temporary custody of the Ford County Social Welfare Department, until further order of the court. Starlette was hospitalized as a result of the deplorable events recited in State v. Jones, 204 Kan. 719, 466 P. 2d 283. On May 1, 1968, John M. Nail, a juvenile officer, filed a second petition initiating the present action which is here on appeal. In his petition Officer Nail alleged that Starlette was a child under sixteen years of age; that her parents were Gene and Karen Jones, of Garden City; that she was a dependent and neglected' child by reason of one or more of the grounds enumerated in 38-802 (g), supra, and prayed that Starlette be declared a dependent and neglected child; that the court exercise the parental power of the state relative to her; that the rights of the natural parents be severed; and that the child be made a ward of the Ford County Social Welfare Department with the right to consent to adoption. Statutory notice was given to all necessary parties. James A. Williams, a member of the Ford County Rar, was appointed to represent Karen Jones (hereafter referred to as appellant or Karen). Mr. Williams filed an answer for Karen, denying the allegations of the petition and praying that the petition be denied; that the temporary custody order be dissolved; and that the physical custody be restored to Karen, the natural mother of Starlette. James T. Myers, a member of the Ford County Bar, was appointed guardian ad litem and filed a general denial on Starlette’s behalf. No further proceedings were had in this action until after the trial of Gene Jones, the stepfather of Starlette. Jones was charged with the statutory rape of Starlette. He was convicted by a jury. On October 25, 1968, Jones was sentenced to a term of not less than one nor more than twenty-one years in the Kansas State Penitentiary. (See State v. Jones, supra.) In the meantime, appellant left her residence in Bucklm and moved to Garden City where she resided until December 1968, when she moved to Tipton, Oklahoma, and established a residence that continued throughout these proceedings. The matter was heard in the Ford County juvenile court on May 27, 1969. Appellant returned from Oklahoma to attend the hearing and brought several witnesses to testify in her behalf. Petitioner Nail and several social workers from Ford and Finney Counties testified in support of the petition. The juvenile court found for petitioner on all points. Thereafter appellant appealed to the district court. The guardian ad litem filed an answer in district court wherein he stated that he concurred with the findings of the juvenile court. A trial de novo was had in the Ford County district court on August 27, 1969. After hearing the testimony of essentially the same witnesses, as those appearing before the juvenile court, the district court concluded that Starlette was a dependent and neglected child; that appellant was an unfit person to have custody of such dependent and neglected child; and that appellant’s parental rights should be permanently severed. The trial court’s conclusions meet the requirements specified by the statutes with respect to the severance of parental rights. Starlette was determined to be a dependent and neglected child within the terms of K. S. A. 1969 Supp. 38-802 (g), now 1970 Supp. The appellant was found to be an unfit person pursuant to the provisions of 38-824 (c) supra, which require that the parents, or parent, must be found and adjudged to be unfit persons, or person, before the juvenile court may make an order permanently depriving such parents, or parent, of their (his or her) parental rights. Appellant does not challenge the adjudication that Starlette is a dependent and neglected child; thus, the pivotal question in this appeal is whether the finding of unfitness is supported by satisfactory evidence. The trial court’s findings, pertinent to the issue, are: “That Starlette Armentrout is a child less than 16 years of age (8 years old at the time of her statutory rape). “That the environment and association in the home of her natural mother, Karen G. Armentrout Jones, has been injurious to her welfare in the past and has definite prospects of being injurious in the future if said child were to be returned to her custody. “That while said child, Starlette Armentrout, was in the custody of said natural mother she was raped by her stepparent; further, that the evidence indicates that Quana Armentrout, another child of Karen G. Armentrout Jones, who is younger than Starlette, experienced the same mistreatment. “That the said Gene Jones was found guilty of statutory rape of said Starlette Armentrout by a jury in Ford County on October 16, 1968, and is now under sentence to the Kansas State Penitentiary at Lansing, Kansas, pending appeal to the Kansas Supreme Court. “That Karen G. Armentrout Jones has failed, neglected and/or refused to recognize the implication of the known facts of injuries to her children, and the ultimate harm visited upon them physically and emotionally, and she has apparently consistently stood by her husband, Gene Jones, and contends that the little girls were injured by another method; that said Karen G. Armentrout Jones in her testimony maintains that she wants to continue the marriage and bring Gene Jones back into the home when and if he is released; thus she fails, neglects and/or refuses to appreciate the potential jeopardy into which these little girls would be placed and the attending apprehension and probable ultimate harm to them.” The court concluded: “That the said minor child, Starlette Armentrout, is a dependent and neglected child as contemplated by K. S. A. 38-802 (g). “That the mother, Karen G. Armentrout Jones, is an unfit person to have custody of such dependent and neglected child, and that parental rights should be permanently severed in accordance with K. S. A. 38-824. “That said child should be made a ward of the Juvenile Court of Ford County, Kansas, and should be committed to the State Department of Social Welfare, with authority to place such child in a family home, give consent for the adoption of such child, and be a party to proceedings for legal adoption of the child.” We should pause, at this point, to note that after appellant moved to Tipton, Oklahoma, in December of 1968, the other children have not been within the jurisdiction of the Ford County juvenile court, nor under the supervision of the State Department of Social Welfare. Before further considering the evidence with respect to the issue of appellant’s unfitness, we should take note of well-established rules of this court pertaining to the severance of parental rights. While the welfare and best interests of children are of paramount consideration in determining an award of custody, as between parents whose marriage has been separated by divorce or separate maintenance, in a proceeding to sever parental rights, the welfare of the child or children must be considered in conjunction with the rights of the parents. A parent will not be permanently deprived of the parental rights to a child unless such parent is found to be an unfit person. The rule and reasoning in support thereof is well stated by Justice Dawson in In re Kailer, 123 Kan. 229, 255 Pac. 41: “Noting respondents’ objections to this judgment, it is urged that the welfare and best interests of the children were the paramount issue. Under the law of the land the welfare and best interests of children are primarily the concern of their parents, and it is only when parents are unfit to have the custody, rearing and education of children, that the state as parens patriae, with its courts and judges, steps in to find fitting custodians in bco parentium. “Putting the matter in another way, it is quite correct to say that the welfare of children is always a matter of paramount concern, but the policy of the state proceeds on the theory that their welfare can best be attained by leaving them in the custody of their parents and seeing to it that the parents’ right thereto is not infringed upon or denied. This is the law of the land on this subject. And it never becomes a judicial question as to what is for the welfare and best interests of children until the exceptional case arises where the parents are dead, or where they are unfit to be entrusted with the custody and rearing of their children and have forfeited this right because of breach of parental duty, or where the right has been prejudiced by the discord of the parents themselves. There are enough of the latter sort of cases where the courts are compelled to interfere and take the custody of children from unfit parents, or to decide which of quarreling parents should have their custody. . . .” (pp. 230-231.) The rule stated in Kailer was quoted in Christlieb v. Christlieb, 179 Kan. 408, 295 P. 2d 658, and again in the case of In re Vallimont, 182 Kan. 334, 321 P. 2d 190, wherein it was further pointed out: “It is definitely established that when the custody of children becomes an issue as between parents, the primary question to be determined by the court is the welfare and best interests of the children, and all other questions are subordinate thereto . . . But this is not the situation presented by the facts in the instant case. Here the father seeks custody from the maternal grandparents.” (pp. 336-337.) To further settle the matter, Justice Schroeder in the Vallimont opinion quoted with approval from the decision in Stout v. Stout, 166 Kan. 459, 201 P. 2d 637: “ . . It will suffice to say that if there is any language to be found in any of our decisions justifying the construction that the children of a natural parent may be given to third persons without a finding such parent is an unfit person to have their custody it should be and is hereby disapproved.’ ” (p. 337.) The statutes under which this proceeding is brought actually amount to a codification of the rulings pertaining to severance of parental rights which have been laid down by this court in the cases mentioned. In the case of Lennon v. State, 193 Kan. 685, 396 P. 2d 290, this court considered severance of parental rights under the provisions of the Juvenile Code in essentially their present form. Considerable emphasis was given the welfare of the child, but a careful examination of the evidence recited and the evaluation thereof clearly indicates the court tacitly said the mother was unfit. She was described in these terms: “. . . Mary’s record throughout her adult years reveals gross instability and lack of moral fiber. . . .” (p. 690.) Further in the opinion it was said: “We readily agree that parental rights are not to be considered lightly, and this court has always been diligent in their protection. (Swarens v. Swarens, 78 Kan. 682, 97 Pac. 968; Pinney v. Sulzen, [91 Kan. 407, 137 Pac. 987], supra.) However, when the welfare of a child so demands, the rights of its parents must yield to the paramount right of their offspring to receive proper parental care, guidance and control. Where such be the case, the state, in the rightful exercise of its power as parens patriae, has the duty to intervene on behalf of the child in furtherance of its legitimate interests, (citing case).” (p. 691.) In determining questions concerning custody or severance of parental rights, a close relationship exists between the fitness of a parent to have custody and the welfare of the child whose custody is in issue. While a higher degree of proof is required with respect to parental rights, the unfitness of a parent controls as to an issue of custody between a parent and a third party as well as with respect to severance of parental rights. In either case the parent must be found to be an unfit person. (Finney v. Finney, 201 Kan. 263, 440 P. 2d 608.) The term “unfit” is not defined by statute. It therefore must be given its ordinary significance, having due regard to the context. In the recent case of Finney v. Finney, supra, wherein the issue was custody between a parent and a third party, the word “unfit” was defined in these terms: “The word unfit’ means, in general unsuitable, incompetent or not adapted for a particular use or service. As applied to the relation of rational parents to their child, the word usually although not necessarily imports something of moral delinquency. Unsuitability for any reason, apart from moral defects, may render a parent unfit for custody.” (Syl. ¶ 2.) See, also, In re Villimont, 182 Kan. 334, 321 P. 2d 190. In the instant case the trial court had before it the testimony of appellant, Starlette and the transcript of the prosecution of the stepfather for the statuory rape of Starlette. We need go no farther to find clear and satisfactory evidence to sustain the trial court’s findings. In her own testimony, appellant stated that she desired custody of Starlette and would request it even if Mr. Jones were returned at the present time. She admitted that there might be complications, but said: “I think we can work everything out.” Appellant strenuously argues that she should not be faulted because of her belief in the innocence of Jones. Her position in this regard can be understood, but nevertheless Jones was convicted by a jury, the conviction was approved by the district court and on appellate review by this court. The facts surrounding the rape of Starlette and the injury suffered are fully set out in our opinion in State v. Jones, supra. It is not necessary to repeat them here. We believe the trial court’s finding of unfitness of the appellant, due to her willingness to risk the further injury of Starlette, under the circumstances related to be justified. The appellant’s testimony reflects that she gives more importance to her relationship with Jones than to the welfare of Starlette. Although not mentioned by the trial court, we note testimony in the record by appellant that she thought Starlette was mixed up. There is testimony by social workers that some of the other children thought Starlette had been bad and that she had been telling bad things about her daddy. Starlette testified that she would not want to go home if Mr. Jones were there and that she would be afraid of him. While the testimony of appellant’s witnesses indicated that she might be rehabilitating herself in her home in Oklahoma, nevertheless, she persists in her desire to bring the stepfather back into the home on his release from prison regardless of the consequences. Appellant’s insistence that Jones is innocent marks Starlette as either being mixed up or a liar; a circumstance which would make Starlette’s position intolerable if she were to be returned to the home of appellant. Necessarily we have compassion for this unfortunate mother, but sympathy cannot be allowed to overshadow the circumstances surrounding Starlette’s return to this home. There is clear and satisfactory evidence to support the finding and judgment of the trial court and it must be affirmed.	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The opinion of the court was delivered by Kaul, J.: The defendant, Kenneth Arthur Roth, appeals from convictions by a jury of murder in the first degree (K. S. A. 21-401 [now K. S. A. 1970 Supp. 21-3401]) and of robbery in the first degree (K. S. A. 21-527 [now K. S. A. 1970 Supp. 21-3427]). Roth, Dale Albert Chase, and Douglas Mark DeWitt were charged with the murder and robbery of James E. Long, a taxicab driver for the Yellow Cab Company of Topeka. Separate proceedings were had with respect to each of the accused. DeWitt entered a plea of guilty. Chase was tried to a jury, convicted of both charges, and his convictions were affirmed by this court in State v. Chase, 206 Kan. 352, 480 P. 2d 62. Roth was convicted in April of 1969, and was sentenced to the Kansas State Penitentiary for a term of not less than ten nor more than twenty-one years on the robbery charge and life imprisonment on the murder charge. The sentences were directed to run concurrently. The facts surrounding the vicious murder and robbery of Mr. Long on May 15, 1968, are fully set out in our opinion in State v. Chase, supra, and, except as related to the points discussed in the disposition of this appeal, need not be repeated. Defendant specifies five points of error; the first of which concerns the trial court’s denial of a challenge to the array of jurors. Defendant says selection of prospective jurors from the tax assessment rolls deprived him of his constitutional right to a jury composed of a truly representative cross section of the community. Both parties agree the jury selection process followed in Shawnee County at the time of the trial here was that provided for by K. S. A. 43-102 [repealed, Laws of 1971, Chap. 176, Sec. 22]. (See, also, K. S. A. 43-135 to 150, incl., [repealed, Laws of 1971, Chap. 176, Sec. 22]). K. S. A. 43-102, as it then appeared, provided in pertinent part that officials shall select from those on the assessment roll of the preceding year suitable persons having the qualifications of electors, and in making such selection the officials charged with the duty shall choose only those persons who are not exempt from serving on juries, who are possessd of fair character and approved integrity, in possession of their natural faculties, not infirm or decrepit, and who are well informed and free from legal exceptions. The term “assessment roll” includes both real and personal property. (State v. Gereke, 74 Kan. 196, 86 Pac. 160.) Defendant argues that a jury array, drawn from this source and limited by the qualifications mentioned, systematically excluded an economic class, i. e., all non-property owners of Shawnee County, and thus resulted in an array which did not represent a true cross section of the community. This court has been confronted with a similar question in a number of recent cases, several of which deal with the selection of jurors under the identical statute. In State v. Stanphill, 206 Kan. 612, 481 P. 2d 998, an array of jurors, drawn and summoned in Sedgwick County, pursuant to K. S. A. 43-154 [repealed, Laws of 1971, Chap. 176, Sec. 22], was challenged. In Stanphill, as in the instant case, the source and standards of qualifications of prospective jurors were controlled by 43-102. The import of the statute was discussed in considerable detail and the challenge was rejected. Justice O’Con-nor speaking for the court had this to say: “With reference to what is now K. S. A. 43-102, this court has said the statute is directory, and a defendant may not cause the jury panel to be quashed on any ground which does not involve corruption, serious misconduct or palpable disregard of the law. Informalities and irregularities are not sufficient. (State v. Carter, 133 Kan. 718, 3 P. 2d 487. Also, see State v. Snyder, 126 Kan. 582, 270 Pac. 590; State v. Frazier, 54 Kan. 719, 39 Pac. 819; State v. Jenkins, 32 Kan. 477, 4 Pac. 809.)” (pp. 618, 619.) In State v. Clift, 202 Kan. 512, 449 P. 2d 1006, cert. den. 396 U. S. 910, 24 L. Ed. 2d 186, 90 S. Ct. 225, the array was challenged on the ground that names of prospective jurors were taken from the personal property assessment rolls of Sedgwick County pursuant to the provisions of K. S. A. 43-154. The challenge was rejected because no systematic or purposeful exclusion of members of a race was established by proof. In the instant case, the assessment rolls included both real and personal property resulting in a cross section base broader than the source in Clip. Although tile challenge in Clift charged racial exclusion, we believe the rationale of both Clift and Stanphill is applicable to the question presented here. While defendant attempts to infer exclusion of an economic class from statistics shown in his brief, our examination of the abstracted portion of the voir dire examination fails to establish any systematic or purposeful exclusion of an economic or any other particular class of citizen. Our most recent consideration of a challenge to an array is found in State v. Theus, 207 Kan. 571, 485 P. 2d 1327, wherein the legislative history of the methods of selecting jurors in this state was reviewed. Tax assessment rolls as a basic, though not an exclusive, source for jury selection was again approved. Our holding in Stanphill was restated with approval to the effect that as a general principle a jury panel is not to be quashed on any ground which does not involve corruption, serious misconduct or palpable disregard of the law. None of these elements is present here, and there is no showing that any impaneled juror was not qualified. We conclude, therefore, the trial court did not err in denying defendant’s challenge to the array. In his second assignment of error, defendant contends the exclusion of jurors (ten in this case), because of scruples against the death penalty, denied him a trial by a representative and impartial jury on the issue of guilt or innocence. The state asked for the death penalty, but the jury recommenced a life sentence. Subsequent to the perfection of this appeal, and the filing of defendant’s, brief, our decision in Zimmer v. State, 206 Kan. 304, 477 P. 2d 971, was announced, wherein we held: “Exclusion of jurors opposed to capital punishment will not be presumed, nor was it shown by evidence adduced at postconviction hearing, to result in an unrepresentative jury on the issue of guilt or to increase the risk of conviction, in violation of constitutional standards.” (Syl. ¶ 1.) On oral argument defendant’s counsel conceded the point raised is squarely determined by our decision in Zimmer, thus further discussion is unnecessary. Likewise, because of our decision in Zimmer, defendant concedes, his third point wherein he challenged the unitary trial of the issues-of guilt and punishment. In Zimmer we held that an accused is-not deprived of his constitutional rights against self-discrimination or of due process by a unitary trial wherein a jury determined guilt of a capital offense and then in the same proceeding determines whether the penalty should be death or life imprisonment. At the time of our decision in Zimmer we relied heavily on Spencer v. Texas, 385 U. S. 554, 17 L. Ed. 2d 606, 87 S. Ct. 648 (1967). Our holding has since been buttressed by the recent decisions announced in McGautha v. California and Crampton v. Ohio, 401 U. S. _, 28 L. Ed. 2d 711, 91 S. Ct. 1454 (1971), wherein it was held: “The Constitution does not prohibit the States from considering that the compassionate purposes of jury sentencing in capital cases are better served by having the issues of guilt and punishment resolved in a single trial than by focusing the jury’s attention solely on punishment after guilt has been determined.” (Syl. ¶ 2.) Defendant’s next contention is twofold, it concerns a witness, Leonard Burton. Defendant first claims error in permitting the state to endorse Burton as an additional witness and then further argues that his testimony was irrelevant and inadmissible. On March 7, 1969, the state filed a motion to endorse Burton and several other witnesses. The state’s motion was heard and sustained on March 10, 1969. On the same date, the state furnished defendant’s counsel a summary of Burton’s testimony. On March 13, 1969, Burton was interviewed by an associate of defendant’s counsel. The trial commenced on March 17, 1969, but it was approximately ten days thereafter when Burton was called as a witness. Under such circumstances, we fail to see how defendant could have been surprised by Burton’s testimony or prejudiced by his endorsement as a witness. It is well settled that the endorsing of additional names of witnesses on the information rests in the sound discretion of the trial court and material prejudice in the ruling thereon must be clearly shown in order to constitute reversible error. (State v. Mader, 196 Kan. 469, 412 P. 2d 1001; State v. Vernon King, 190 Kan. 825, 378 P. 2d 147; and State v. Wainwright, 190 Kan. 619, 376 P. 2d 829.) The testimony of Burton was admitted by the trial court over defendant’s objection that it was totally irrelevant. Burton had been an employee of the Jayhawk Hotel since 1930. During the period in question he worked the hours from 11 p. m. until 7 a. m. In substance Burton’s testimony was that between 11:30 p. m. and 1:00 a. m., during May 14-15, 1968, he saw three boys crossing the street on the north side of the hotel. He could not identify them, other than that they were white, walking three abreast, the one in the middle was taller than the other two, all had long hair; they were wearing dark sweaters and were clowning and laughing. Burton saw no one else on the street at the time. Burton could not remember the date but the time was fixed by Detective Landis, who interviewed Burton the day after the crime. The principal witnesses for the state were the codefendants, Chase and DeWitt. They both testified that the three of them were together on Seventh Street on the north side of the Jayhawk Hotel and that they called the cab from the Yellow Cab taxi telephone on the north side of the hotel. The Yellow Cab station referred to was identified as station No. 22. The company records, which were received into evidence, disclosed that a cab was called from station No. 22 at 12:28 a. m. [May 15, 1968]. Mr. Long’s cab was dispatched and he reported that he had picked up passengers and was headed for the Highland Park High School. This was the last word received from Mr. Long. Burton could not identify the three boys as such, but his testimony was not offered for that specific purpose. In weighing the relevancy of Burton’s testimony it must be considered in the context in which it was given at the trial. The testimony of the state’s principal witnesses, codefendants Chase and DeWitt, put the three boys together at the north side of the hotel; the cab company records established the time and place of the taxicab call. Burton’s testimony was not only corroborative of but also consistent with other evidence as to time and place. There were no other persons on the street. Burton’s general description of the three boys was consistent with other evidence in this regard. DeWitt was in fact taller than Chase or Roth. While defendant did not take the stand nor offer direct testimony on the main issue, as the trial progressed through defendant’s skillfull cross-examination of the state’s witnesses, the fact whether the three boys were together became an extremely material point. The testimony of Burton, for what it was worth, became relevant as tending to corroborate the testimony of Chase and DeWitt on this point. The trial court carefully considered the relevancy of Burton’s testimony in an out-of-court hearing before it was submitted to the jury. We believe the probability of connection was enough to support the trial court’s determination of relevancy. Relevancy is governed by the broad language of K. S. A. 1970 Supp. 60-401 (b) of our code of civil procedure which reads: “ ‘Relevant evidence’ means evidence having any tendency in reason to prove any material fact.” In considering relevancy under 60-401 (b) in State v. Gauger, 200 Kan. 563, 438 P. 2d 463, we quoted with approval our holding in the case of In re Estate of Isom, 193 Kan. 357, 394 P. 2d 21. There we held: “For evidence to be admissible in the trial of a case it must be confined to the issues, but it need not bear directly upon them. To render evidence of collateral facts competent, there must be some natural, necessary or logical connection between them and the inference or result which they are designed to establish.” (Syl. ¶ 2.) Along the same line we had this to say in State v. Poulos, 196 Kan. 253, 411 P. 2d 694, cert. den. 385 U. S. 827, 17 L. Ed. 2d 64, 87 S. Ct. 63: “. . . If the evidence is relevant to the issue being investigated, the jury is permitted to receive it, unless some other rule of exclusion or privilege, as announced in Article 4 or other statutes, causes the evidence to be excluded. . . .” (p. 263.) Finally, defendant contends the evidence is insufficient to support the verdict. Defendant points out that both DeWitt and Chase had records of mental illness and that there were considerable conflicts and a number of discrepancies in their testimony. At the outset of our discussion on this point, it should be noted that the jury was fully and specifically instructed regarding the credibility of Chase and DeWitt as accomplices. No complaint was lodged concerning the instructions. Even though there were discrepancies and contradictions between the two codefendant witnesses, and in some instances discrepancies with their previous testimony given at the pretrial hearing, these matters do not go to the admissibility but to the weight of the testimony which was solely within the province of the jury. While there were several discrepancies in times, places and descriptions of events, on the main issue, Chase and DeWitt both testified that Roth took part in the planning of the crimes and, in fact, fired the fatal shots. The jury, under a proper precautionary instruction, chose to believe their testimony which was, if believed, entirely sufficient to support the verdict. The law of this state with respect to the testimony of accomplices and the treatment thereof on appellate review was fully set out by Justice Parker speaking for the court in State v. Peasley, 179 Kan. 314, 295 P. 2d 627: “. . . Much of the argument on this point is based on the premise the evidence of the two accomplices, who testified to the effect appellant partici pated in the planning and commission of the crime in question, was either inadmissible or should not have been believed by the jury. The trouble with appellant’s position on this point is that all arguments made with respect thereto refuse to recognize, wholly ignore and entirely overlook the long established decisions of this court holding that in criminal actions (1) the uncorroborated testimony of one accomplice, to say nothing of two, if otherwise sufficient, will sustain a conviction (See West’s Kansas Digest, Criminal Law, §§ 508 to 510, inch; Hatcher’s Kansas Digest [Rev. Ed.], Criminal Law, § 288); (2) it is the function of the jury, not the court of appellate review, to weigh the evidence and pass upon the credibility of the witnesses (State v. Osburn, 171 Kan. 330, 232 P. 2d 451); and (3) where there is substantial competent evidence to support it a verdict of guilty will not be disturbed on grounds it is based on insufficient evidence or contrary to the weight of the evidence. (State v. Stout, 175 Kan. 414, 264 P. 2d 1056). (p. 318.) The rules set out in Peasley have been consistently followed in many later cases, most recently in State v. McLaughlin, 207 Kan. 594, 485 P. 2d 1360, and State v. Mae McLaughlin, 207 Kan. 584, 485 P. 2d 1352. In the instant case the jury saw and heard the able defense counsel— on cross-examination — point out to each of the two co-defendants the discrepancies in their own statements of what transpired, their credibility was fully tested for the benefit of the jury in weighing their testimony. After deliberating for twenty hours, the jury chose to believe the testimony on the main issue regardless of the inconsistencies. This was the jury’s function and since there was ample evidence, if believed, to support the verdict, it cannot be disturbed on appellate review. The judgment is affirmed.	[ -16, -22, -15, 63, 25, 96, 42, 24, 113, -75, 50, 83, 43, -54, 5, 121, -5, 61, -44, 121, -76, -105, 119, -55, -94, 115, -40, -59, -78, 89, -84, -3, 8, -80, 74, 85, -26, 72, 71, 84, -82, 2, -71, -47, 90, 10, 32, 110, 114, 2, -79, 30, -5, 42, 26, -62, 41, 44, -37, -81, 0, -79, -21, -121, 109, 18, -77, -122, -34, 7, -48, 55, -40, 57, 0, -24, 115, -90, -122, -12, 105, -119, -116, 102, 98, 33, 21, -51, -92, -127, 46, 87, -113, -57, -108, 81, 66, 12, -106, -35, 114, 118, 11, -4, -17, 4, 81, 124, -126, -33, -80, -109, 77, 54, 2, -54, -5, -95, 48, 113, -120, -30, 78, 71, 82, 51, 15, -44 ]
The opinion of the court was delivered by Fromme, J.: This is an action originally brought in the district court by residents and taxpayers of Cowley county to require a rearrangement of the three county commissioner districts in that county under the authority of K. S. A. 19-204. In pertinent part the statute provides: “The board of county commissioners shall, on the day of the organization of the board or as soon thereafter as may be possible, meet and divide the county into three commissioner districts, as compact and equal in population as possible, and number them respectively 1, 2, and 3, and subject to alteration at least once every three years, but if they fail to make such division before the election of the county officers, such failure shall in no case prevent the election of the commissioners: . . .” (Emphasis added.) The action was filed in June, 1969. The last major rearrangement of the three commissioner districts was accomplished in January, 1964. However, some slight changes to equalize population were made in April, 1968. After a hearing the district court found the three districts were not in substantial compliance with the dictates of K. S. A. 19-204, and ordered a redistricting of the three commissioner districts. The court continued to retain jurisdiction of the controversy. Thereafter the county commissioners rearranged the districts by a resolution filed in August, 1969. The plan was then submitted to the court and the rearrangement of August, 1969, was approved. Additional objections had been filed against the plan by the plaintiffs and these were considered by the court. The present appeal is from the order of the district court approving the plan of August, 1969. Although the appellants list eleven separate points on appeal, neither their brief nor their arguments are directed to these points. Therefore all points not discussed in this opinion are considered to have been abandoned. The general thrust of appellants’ claims on appeal lie in three general directions. First, the statutory requirements as to compactness and equality of population have not been met; second, the commissioner districts were gerrymandered to prevent the citizens of Arkansas City from electing more than one county commissioner; and third, the district court failed to state the facts and legal principles upon which its decision is based. Refore discussing these three points some general background information on Cowley County is necessary. According to a map and other information gleaned from the record, Cowley County covers an area 33 miles north and south and 35 miles east and west. This is an area of approximately 1155 square miles. It has a population of 35,439. There are two fairly large cities located within the county. Arkansas City, with a population of 14,061, is located in the southwest corner of Cowley County, five miles from the west boundary and three miles from the south boundary. Winfield, the other city, is the county seat, and it has a population of 10,494. It is located about eight miles from the west boundary of the county and midway between the north and south boundaries. Outside of these two cities there is a total of 10,884 people living in twenty-five rural townships which include several small cities or towns. A recitation of the foregoing facts alone indicates some of the difficulties encountered in arranging Cowley County into three districts as compact and equal in population as possible. One-third of the total county population is 11,813. This ideal population for a commissioner district is somewhat less than the population of Arkansas City (14,061), only slightly more than the population of Winfield (10,494) and slightly more than the total population in all remaining rural areas (10,884). In the rearrangement of commissioner districts one other primary factor must be kept in mind in addition to compactness and equality of population. In dividing a county into three commissioner districts the boundaries of the districts must follow the boundaries of voting precincts. The people in one voting precinct cannot be divided or placed in two or more commissioner districts. This prohibition stems from the ballot and voting procedures of this state. This factor was recognized in State, ex rel., v. Osage County, 112 Kan. 256, 210 Pac. 619, where the court said: “No reason appears why a city may not be divided so that one part lies in one district and another part in another district so long as the boundary lines of the district follow the boundaries of the city wards and do not interfere with voting precincts.” (Syl. ¶ 5. See, also, State, ex rel., v. Montgomery County Comm’rs, 125 Kan. 379, Syl. ¶ 3, 264 Pac. 84.) Now let us consider the arrangement of the three commissioner districts as finally approved by the district court in its order filed in November, 1969. District # 1 includes 7,157 people from Winfield plus 4,369 people from eleven rural townships. The rural townships generally lie in a northeasterly direction from Winfield and extend to the east and north boundaries of the county. The district has a total population of 11,526 people. This is 287 persons less than the goal of an ideal district which would contain exactly one-third of the total county population. District # 2 includes 9,984 people from Arkansas City plus 2,126 people from six rural townships. The rural townships lie east and west along the entire south boundary of the county. The district has a total population of 12,110 people. This is 297 persons more than the goal of an ideal district. District # 3 includes 3,337 people from Winfield, 4,077 people from Arkansas City and 4,389 people from ten rural townships. These rural townships lie in an el shape along the west and north boundaries of the county. The district has a total population of 11,803 people. This is only 10 persons less than the goal of an ideal district. The population disparities among these districts of —10, — 287 and -f- 297 are well within the acceptable tolerances dictated by K. S. A. 19-204 and as interpreted by both federal and state case law. Such a division results in three districts in Cowley County as equal in population as possible when other necessary factors such as voting precinct boundaries, natural barriers, topography, transportation and compactness are considered. (See State, ex rel., v. Osage County, supra.) Appellants have devoted much of their brief to federal apportionment cases such as Baker v. Carr, 369 U. S. 186, 7 L. Ed. 2d 663, 82 S. Ct. 691; Gray v. Sanders, 372 U. S. 368, 9 L. Ed. 2d 821, 83 S. Ct. 801; Wesberry v. Sanders, 376 U. S. 1, 11 L. Ed. 2d 481, 84 S. Ct. 526; Reynolds v. Sims, 377 U. S. 533, 12 L. Ed. 2d 506, 84 S. Ct. 1362, and Avery v. Midland County, 390 U. S. 474, 20 L. Ed. 2d 45, 88 S. Ct. 1114. In addition to those cases we might add Long v. Avery, 251 F. Supp. 541 (1966) and Simone v. MacPhail, 291 F. Supp. 697 (1968) where the federal court under the equal protection clause of the 14th Amendment to the United States has been called upon to examine the apportionment of Kansas senatorial districts and of the county commissioner districts in Crawford County, Kansas. It would add little to this opinion to review the federal cases for what has been declared by the federal courts in this area was recognized long ago in K. S. A. 19-204. The Kansas courts when called upon have enforced the requirement of the statute, that each county be rearranged into three commissioner districts “as compact and equal in population as possible.” Each county is subject to rearrangement at least once every three years as stated in the statute. A few of the cases which have reached this court in the past are State, ex rel., v. Osage County, supra; State, ex rel., v. Labette County, 114 Kan. 726, 220 Pac. 275; State, ex rel., v. Montgomery County Comm’rs, supra, and State, ex rel., v. Reno County Comm’rs 158 Kan. 573, 148 P. 2d 1012. Appellants complain of the rearrangements approved by the district court because of lack of compactness. This requirement was examined in State ex rel., v. Osage County, supra, where it was said: “The word ‘compact’ has various shades of meaning when used in this connection, and permits the consideration in good faith of existing lines, topography, means of transportation and other factors. It means that the territory shall be closely united, and not necessarily that the residents of each district shall be united in interest.” (Syl. ¶ 4.) The complaint arises because of three small border areas in West Creswell precinct which lie between the boundary of Bolton Township and the city boundaries of Arkansas City. Arkansas City lies within Creswell Township. Bolton Township to the south and Creswell Township to the north have long been divided by a natural boundary formed by the Arkansas River. Arkansas City, lying in Creswell Township, has grown south in an irregular pattern and its boundary now coincides with that of Creswell Township in three separate segments along the river. However, there are three small areas of West Creswell precinct along the river boundary which have not been taken into the city. These three small areas plus the larger area of West Creswell precinct which surrounds the city on the west, north and east, make up one voting precinct, and this entire precinct was included in commissioner district # 3. The precincts and wards in Arkansas City which border the river and lie adjacent to Bolton Township on the south were included along with Bolton Township in commissioner district #2, which district runs along the south boundary of the entire county. Therefore, we are confronted with not only the requirement of compactness but also the requirement that the integrity of the boundaries of voting precincts be maintained. The present plan preserves the integrity of the boundaries of West Creswell precinct, all of which was placed in district # 3. The integrity of the boundaries of voting precincts and wards of Arkansas City was also preserved. The three small non-contiguous areas are a natural result of preserving the integrity of the boundaries of these voting precincts. Our statute relating to the rearrangement of commissioner districts contains no specific requirement as to contiguity. The only arrangement of commissioner districts which would make these areas contiguous would be to include all of West Creswell precinct with all of Arkansas City to make one commissioner district. This would be unacceptable from a population standpoint for it would create a district with 14,853 people, 3,041 people in excess of the ideal goal of 11,813. In addition, it would result in said district being totally surrounded by the other districts. As expressed by the district judge in his original decision requiring a redistricting, the other districts would then encompass this district "as a persimmon surrounds its seeds.” Such an arrangement of districts did not appear satisfactory to the trial judge when he ordered redistricting. It does not appear satisfactory to us when we consider one of the purposes of the county commissioner districts in Kansas, that of overseeing a county highway program. Because of what has been said we believe commissioner district # 3 is as compact as possible, in that it has a close union of the parts, lies in narrow compass and is the nearest practical approximation to compactness as is possible when the integrity of voting precincts is preserved. (See definition of compactness, 8 Words and Phrases, [perm, ed.] p. 250.) We have carefully studied the three commissioner districts as rearranged and approved. We hold they are as compact as possible under the circumstances, and are arranged in compliance with the dictates of the statute and the case law. The second complaint of the appellant is that the boundaries of the three districts were gerrymandered to prevent the citizens of Arkansas City from electing more than one county commissioner. This complaint is not made on the basis of evidence, other than the results achieved by the commissioners in their final plan. The trial court found the members of the board of county commissioners conscientiously attempted to comply with the law and the order of the court. There is no evidence in the record to the contrary. It would be difficult, solely on the basis of the results achieved here, to ascribe improper motives to the commissioners. The arrangement of districts placed the city of Winfield in a position of influence in district # 1 by including 7,157 people from Winfield in the district along with 4,369 from the outlying rural areas. The arrangement placed the city of Arkansas City in a position of influence in district § 2 by including 9,984 people from Arkansas City in the district along with 2,126 from the outlying rural areas. Other things being equal the people in these two population centers would each be able to influence any district election to obtain one commissioner in the county favorable to their interests. The third commissioner district contained 3,337 people from Winfield, 4,077 people from Arkansas City and 4,389 people from the outlying rural areas. Under this arrangement neither city appears to have any undue advantage in electing the third commissioner, for the balance of power would lie with the outlying rural areas. We point these matters out merely to examine the charges of gerrymandering. We do not wish to be understood as saying that such a fine line of balance is necessary. In State, ex rel., v. Osage County, supra, and in State, ex rel., v. Reno County Comm'rs, supra, it was held that cities may be divided so that one part lies in one commissioner district and another part lies in another district. The discretion in making the division under the statute is lodged in the board of county commissioners. In the absence of evidence of improper motives on their part a plan which meets the statutory requirements of compactness and equality of population without violating the integrity of voting precincts should be approved, for no abuse of discretion on the part of the board can be presumed. Abuse of discretion must always be clearly established by those attacking the results of discretionary action of a governing body in order to establish the unreasonableness of the action. (Bodine v. City of Overland Park, 198 Kan. 371, 424 P. 2d 513; Creten v. Board of County Commissioners, 204 Kan. 782, 466 P. 2d 263.) In view of our previous conclusions as to the compactness and equality of population in these districts, we find the claim of gerrymandering to be without substantial merit. The final complaint on appeal is directed toward a claim of insufficiency of the trial court’s findings of fact and conclusions of law. The complaint is not specific. No claim is made that any controlling finding or conclusion was omitted by the trial court. The original findings and conclusions of the court appear in its memorandum opinion and in the journal entry which followed on April 2, 1969. It would serve no useful purpose to iterate those findings. They are set forth at length in eleven pages of the record. In line with these findings the board was directed to and did redistrict the commissioner districts. The final conclusions of the court in approving the rearrangement of those districts are as follows: "1) That the Board of County Commissioners have conscientiously attempted to comply with the law and with the order of this court previously made and entered by memorandum opinion on January 29, 1969, and by Journal Entry on the 2nd day of April, 1969; "2) That the plan submitted by the said Board of County Commissioners meets all statutory and constitutional requirements for redistricting; “3) That some irregularity must necessarily exist in the shaping of the districts, resulting from following natural boundary lines in preserving the integrity of political subdivisions. “4) That the districts meet the statutory requirements for compactness and that any deviation of numerical equality of population is within acceptable limits considering the circumstances of this particular case. “5) That the plan herein approved contained pockets formed between Arkansas City and the Arkansas and Walnut Rivers and normally such pockets are to be avoided; but in this particular instance, there is no practical solution for avoidance thereof, and that no disadvantage would occur, per se, to the voters living within the pocketed areas; or if any disadvantage does exist, it would be the same in whatever district they were placed.” The requirement of findings under K. S. A. 60-252 (a) is that the court state the controlling facts. The controlling facts were fully set forth in the memorandum opinion which incorporated into the findings all facts disclosed by the various exhibits and maps of the area, together with the stipulations of facts by the parties. By reference to the exhibits and stipulations the court set forth the controlling facts. The findings and the conclusions quoted therein were sufficient to resolve the issues before the district court. The findings required by K. S. A. 60-252 (a) should be sufficient to resolve the issues, and in addition they should be adequate to advise the parties, as well as the appellate court, of the reasons for the decision and the standards applied by the court which governed its determination and persuaded it to arrive at the decision. These requirements are apparent in the statute itself. The purpose of the requirements in the statute is similar to the purpose for findings by administrative agencies. See Kansas Public Service Co. v. State Corporation Commission, 199 Kan. 736, 433 P. 2d 572; and Central Kansas Power Co. v. State Corporation Commission, 206 Kan. 670, 482 P. 2d 1. The findings of the district court and its reasons for the decision are adequately set forth in the memorandum decision and in the final journal entry of judgment. The judgment is affirmed.	[ 53, -18, -15, 92, 42, -64, 34, -91, 80, -79, 103, 83, 47, -56, 21, 125, -78, 63, -43, 105, -59, -10, 83, 67, 34, -77, -55, 71, -5, -51, -10, -52, 75, 49, -54, -11, 70, 96, 71, -36, -82, 2, -117, 77, 64, -126, 60, 107, 18, 7, 53, 47, -78, -88, 60, -29, -55, 44, -39, -90, 80, -69, -34, -51, 93, 4, 49, -90, -102, -123, 124, 46, -112, 49, -48, -20, 83, -90, -122, 117, 77, -37, 44, 34, 111, 1, 44, -17, -8, -84, 14, -70, -67, -26, -124, 24, 98, 2, -66, -107, 117, 82, 10, -4, -25, 5, 19, 108, -124, -114, -108, -77, 78, 49, 0, 3, -29, -121, 16, 113, -63, -14, 93, -57, 19, 59, -58, -48 ]
The opinion of the court was delivered by Brewer, J.: Plaintiff in error filed his petition in the district court to foreclose a mechanics’ lien on the property of defendants in error. The petition set out the building contract, the statement for a lien as filed, and alleged a balance due of $267.36, for which he prayed for a judgment and a foreclosure of the lien.. The defendants answered, setting up an arbitration, besides other matters. So much of the answer as refers to the arbitration matter is as follows: “That on or about the 28th of February, 1881, the plaintiff and defendants agreed to and did submit to certain arbitra tors all the plaintiff’s claims against the defendants existing by reason or growing out of any, every and all .the matters and things alleged in the petition, and also a claim by defendants that they had satisfied the same and all of said claims; and said plaintiff and defendants then and there agreed that such submission and the award of said arbitrators thereunder should be final between plaintiff and defendants; that in pursuance of said agreement, plaintiff and defendants presented their respective said claims ánd proofs before said arbitrators, who having duly heard and considered the same, did, on the 28th day of February, 1881, render their award therein, whereby they determined and decided that the plaintiff should deliver to said arbitrators, for delivery by them to said plaintiff, their (the defendants’) check for $117.50, and also a promissory note for $30.50 in favor of John Dole, and signed by the plaintiff; and that the defendants should also deliver to the plaintiff the receipts in full of two book accounts, one of which was in favor of the defendants against the plaintiff, and the other in favor of the defendants against H. Gerstenkorn, the father-in-law of said plaintiff, and that thereupon the plaintiff should receipt in full for his said claims against the defendants; that thereupon the plaintiff and defendants accepted and ratified the said award, and the defendants fully complied with the terms imposed upon them by said award, and delivered said check and note and receipt as required by said award, and that said arbitrators immediately delivered said cheek and note to said plaintiff, to whom defendants immediately paid the amount of said check, and that said plaintiff accepted and received said check, note, receipts and the amount of said check in full satisfaction and discharge of all the said claims of plaintiff, and in full satisfaction and discharge of the cause of action alleged in the petition; that all the facts hereinbefore alleged took place before the commencement of this action.” To this the plaintiff filed this reply: “The plaintiff admits that all the matters of difference between himself and defendants were submitted to arbitrators, as alleged in defendants’ answer, and that said arbitrators made an award as alleged in said answer; but plaintiff denies all the other allegations of said answer, and further says that said defendants have refused to comply with the terms of said award, though often requested to do so.” Upon these pleadings the defendants moved for judgment, which motion was sustained by the court, and plaintiff alleges error. But a single question arises, and that is one of merger: Was the plaintiff’s original claim so far merged in the award that no action could be maintained upon it ? Merger is defined to be the absorption or extinguishment of one estate or contract in another. (2 Burrill’s Law Diet., p. 194.) That if a simple claim for money is once put in judgment the claim is merged in the judgment, so that no action can be maintained on the former, is unquestioned. (Lindh v. Crowley, 26 Kas. 47.) Indeed, some authorities have gone so far as to hold that when the original debt is tainted with fraud, and therefore not dischargeable by bankruptcy proceedings, yet if such debt be put in judgment that judgment will be barred by the discharge of the bankrupt, and no inquiry be permitted into the nature of the cause of action on which the judgment was based. On the other hand, where a mere account for money is settled by the giving of a note, that account is not necessarily satisfied by the note, and an action may be maintained on the account; though even then, if parties agree, the note may be taken as payment and the account is then merged in the note. (Medberry v. Soper, 17 Kas. 369.) An arbitration and award is intermediate the two settlements by note and judgment. In some respects it partakes of the nature of each. If it be an arbitration under the statute, with the agreement to make the submission a rule of court, it partakes much of the nature of judicial proceedings; and certainly when the award has been filed in the court it will be difficult to give reasons why the claim is not merged in the award as in an ordinary judgment. This, however, was not such a proceeding, but only a common-law arbitration. This partakes on the one hand of the nature of a judgment, in that it is the determination of those who are quasi judges selected by the parties therefor, and on the other hand, it partakes of the nature of a mere settlement, as it is a voluntary agreement for the adjusting of differences, and the award may be regarded as simply the contract settlement between the parties. So that it has not been universally held in all cases that such an award is a merger of the claim and a bar to an action thereon. Yet arbitration proceedings ought to be encouraged; and, so far as is consistent with the preservation of the rights of the parties, full force and effect should be given to them. As a general proposition, we think it may be be laid down that an award is a merger of the original claim, and a bar to a suit thereon. (Miller v. Brumbaugh, 7 Kas. 352; Coleman v. Wade, 6 N. Y. 44; Brazill v. Isham, 12 id. 9; Armstrong v. Masten, 11 Johns. 189; Conger v. Dean, 3 Iowa, 463; Burns v. Hindman, 7 Ala. 531; Greene v. Darling, 5 Mass. 201; Richardson v. Lanning, 26 N. J. L. 130; Spear v. McChesney, 2 Watts & S. 233; Ennos v. Pratt, 26 Vt. 630; Dolph v. Clemens, 4 Wis. 181; Rodgers v. Holden, 13 Ill. 293; Tevis v. Tevis, 4 T. B. Mon. 46; Evans v. McKinsey, 6 Litt. 262; Duren v. Gretchell, 55 Me. 241; Warfield v. Holbrooke, 20 Pick. 531; Jessiman v. Iron Co., 1 N. H. 68; Pickering v. Pickering, 19 id. 389; Preston v. Whitcomb, 11 Vt. 47; Rexford v. Nye, 20 id. 132; Robinson v. Morse, 26 id. 392; Babcock v. School District, 35 id. 250; 1st series U. S. Digest, vol. 1, p. 636, ¶ 864, and cases cited therein.) It is doubtless true, however, as has been stated, that this rule has not been enforced in all cases, and that some exceptions have been attempted to be engrafted upon the general rule. (6 Wait’s Act. & Def., p. 550, § 24.) ■ Conceding full authority to these exceptions, and still we think the ruling of the district court must be sustained. It is said, first, that if only the amount of the debt is submitted and the award simply ascertains the amount and directs its payment in money, no new duty arises; second, that if the award only directs a release to discharge the old duty, the old duty is not merged therein; and third, that when the award is not reciprocal, as where it directs that the party shall accept without awarding performance by the other, the original claim is not merged- in the award. Here the original claim was for money, but the award directs the surrender of a note, the giving of a check, and the receipt of two book accounts. Obviously, this is more than merely ascertaining the amount due, and directing its payment in money. It is not simply ordering a release or the defendant’s discharge of an old duty, and it directs performance of several, things by one party for the purpose of obtaining a discharge of the claims of the other. It will not do to say that the award of these things by the arbitrators was simply the recognition and enforcement of an old duty, for the claim as made is for payment in money, and that claim is adjusted otherwise than by directing a payment in money. Nor can it be said that the award was outside the terms of the .submission, for that, according to the allegations, was very broad and general, and every presumption is to be made in favor of the correctness of the award. (Tomlinson v. Hammond, 8 Iowa, 40; Dolf v. Clemens, 4 Wis. 181.) We conclude, therefore, that even if the exceptions named by counsel must be regarded as sound in law, yet the facts in this case do not bring it within either one. The ruling of the district court was correct, and must be affirmed. All the Justices concurring.	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The opinion of the court was delivered by Brewer, J.: Plaintiff shipped a car-load of ear corn over the road of the defendant, from Shannon, Kansas, to Gibson, Illinois. When the corn reached Atchison, defendant, without the knowledge or consent of plaintiff, caused the corn to be run through an elevator and shelled. The plaintiff had caused this corn to be carefully selected, and was shipping it to an agent in Illinois, to be there sold for seed purposes. The shelling of the corn materially injured its value for such purposes, and he brought this action in consequence, to recover damages therefor. Only two questions need to be-considered. The bill of lading stated that it was ear corn, which was to be received and to be transported. The petition alleged that it had been carefully selected, and was of peculiar value for seed purposes. It did not specifically allege that plaintiff had notified the defendant of the object for which the corn had been selected and was shipped. On the trial, over the objection of the defendant, he was permitted to show that he notified'the defendant’s agent at Shannon, before the shipment, that he was selecting and shipping it for seed purposes, and also that while the corn was at Atchison, by his son he notified the company’s proper officers there that it was for seed purposes, and was not under any circumstances to be shelled. Of this defendant complains, claiming that the ordinary rule of damage is the difference between the value of a car-load of ear and one of shelled corn; and that if any special damages are to be recovered by reason of the special purpose for which the corn was designed and selected, it should have been notified in advance of such purpose, and if notice is necessary an allegation of notice is also necessary. It is sought to bring this within the rule which obtains where an article is ordered from a manufactory to be manufactured for a special purpose. We think the objection not well taken. The rule of damage would be the difference between the value of this car-load of corn, of the kind and quality it was, and in the condition it was, for any purpose for which such a car-load of corn might ordinarily be expected to be used, and the value of that carload of corn in the condition in which it was delivered, for any uses to which it could ordinarily be put. If such a carload of corn, of that quality and kind and in the ear, was worth $1.25 per bushel in Illinois, by reason of its being specially fit for seed purposes, then that was the amount which he was entitled to receive as the proceeds of that corn, if properly transported by the defendant. It cannot be said that the use of corn for seed purposes is so out of the ordinary and usual purposes for which corn is shipped, that the defendant was entitled to special notice of such purpose. This corn, being of better quality and more carefully selected than ordinary loads of corn, and being obviously such as shown by the testimony, was of higher value; and whatever was its value for any purpose for which corn is ordinarily used, belonged to the plaintiff, and of it he could not be deprived by any wrongful act of the defendant. The defendant had no right to assume that it was intended merely for feeding stock or any use to which corn of inferior quality may be put. Being obviously of a higher grade, it was reasonably to be presumed that it was intended for some other and more important use. Further, it is evident that the defendant was in no way misled at the time of the trial as to the purposes for which this corn was bought and shipped; for the fact was expressly alleged in the petition, and the depositions of witnesses in Illinois on file before the trial also fully disclosed it. The other question is this: Witnesses in Illinois testified by deposition to the value of corn in the ear for seed purposes, placing it much higher than that of shelled corn. Being asked the reason of the difference, they stated substantially that farmers would not buy shelled corn for seed; and further asked why this was, testified that the farmers’ objections were that they could not examine the shelled corn so easily, and that the kernels were apt to be cracked and broken. We see nothing in this testimony which is open to just objection. Having testified to a large difference between the value of ear and shelled corn, it was but right that the reasons for such difference should be given; and notwithstanding these reasons were substantially only the statements of farmers, yet they do not partake of the nature of hearsay, for the statements themselves were evidential facts. While the difference between the value of ear corn and shelled corn as testified to by the witnesses seems very large, and consequently the amount of the verdict also large, yet the testimony was all one way, and fully justified, if it did not compel, the verdict. The defendant offered no testimony, leaving the question of damages, as well as its liability, to rest upon the plaintiff’s evidence. We see nothing else that requires notice, and the judgment will be affirmed. All the Justices concurring.	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Per Curiam: The judgment in this case is affirmed, on the authority of the case of the same plaintiff in error v. James D. Riggs, just decided.	[ -80, 114, -3, 62, 74, -32, 56, -102, 15, 33, -9, -13, -81, -117, 20, 119, -61, 105, -79, -13, -10, -13, -42, -63, -10, -14, -21, -41, 56, -20, 127, 94, 92, 113, -62, -43, 102, -128, 77, 84, -58, 21, -119, 108, 73, 115, 32, 59, -112, 14, 49, 23, 99, 42, 59, -61, -23, 40, -55, -24, 19, -111, -114, -123, 77, 21, -111, 38, -99, 6, 92, 46, -60, -71, 1, -8, 114, -28, 67, -11, 107, 57, 36, 66, 110, 1, 81, -27, -80, -104, 6, -34, -113, -90, 27, 24, -24, 15, -90, 61, 100, 49, 15, 110, -31, -35, 31, 56, 13, -113, -106, -73, -17, 117, -8, -54, -61, 99, 16, 68, -64, 40, 84, -34, 23, -109, -102, -106 ]
The opinion of the court was delivered by Horton, C. J.: The plaintiff, Bruce Miller, was the probate judge of the county of Cherokee from January, 1881, to January, 1883, and 'exercised the duties of the office. The defendant was a practicing physician within said county on May 27, 1881, and has ever since continued in the practice of his profession. On May 27, for the purpose of complying with §3, ch. 128, Laws of 1881, he made and filed with the plaintiff, as such probate judge, the affidavit required in said section. On May 27, there were ten druggists in said county having permits to sell intoxicating liquors under the provisions of chapter 128; subsequent to said May 27 and prior to January, 1883, seventeen other druggists took out permits to sell intoxicating liquors in the county. The plaintiff, as such probate judge, issued to each of said druggists a certificate showing the filing of the affidavit by the defendant, aggregating in all twenty-seven certificates; the plaintiff has never been paid by the defendant for the issuing of the certificates, and therefore brought this action against the defendant to recover his fees, amounting to $ 13.50. A general demurrer was interposed to the petition in the court below, and sustained by the court. The plaintiff excepted, and complains of this ruling. Although the legislature has provided that when any physician shall make and file with the probate judge of the county wherein he may practice his profession an affidavit to keep, observe and perform the requirements of the statute regulating the sale and use of intoxicating liquors, the probate judge with whom the application is filed shall forthwith deliver to each licensed druggist in his county a certificate of the filing thereof, it has not prescribed who shall pay the fees of the probate judge therefor. (Laws of 1881, ch. 128, §3.) It is insisted by the plaintiff that, as the physician filing such an affidavit causes the services to be performed, he must pay the fees, as such services necessarily grow out of the filing of the affidavit. The same argument could be made in favor of requiring each druggist receiving the certificate to pay the fee therefor, as the statute prescribes that the probate judge shall deliver certificates to licensed druggists only. Therefore, when a druggist obtains a permit or license, he renders it incumbent upon the probate judge of his county to deliver to him a certificate of the filing of each physician’s affidavit it required by the prohibitory act. As the statute does not prescribe that the physician shall pay for the certificate or notice of the filing of his affidavit, we are not to construe it to make him responsible in the absence of such legislation. It would be an exceedingly harsh interpretation of the law to require a physician practicing in a city or town, and patronizing one or two druggists only, to make him liable for the fees of the probate judge for the certificates delivered to all druggists in his county. No such obnoxious intrepretation should be given to the statute unless absolutely required by its provisions. In our opinion, the statute authorizes no such interpretation. The judgment of the district court must be affirmed. All the Justices concurring.	[ -16, -18, -20, 28, 42, -32, 26, -102, 90, -29, -75, 115, -3, -46, 5, 35, -13, 109, 117, 105, -58, -77, 71, 97, -126, -13, -53, -41, -80, -17, -28, -43, 13, 44, -62, 85, -26, -54, -63, -40, -62, 0, -119, -24, 91, -63, 52, 51, 67, 15, 113, 23, -61, 60, 21, -61, 109, 44, -7, -119, -40, -95, -98, -107, 109, 7, -111, 102, -104, -127, -40, 46, -104, 49, 0, -24, 51, -90, 2, -12, 11, -71, 12, 102, 102, 33, 21, -17, -96, -56, 15, -82, -99, -121, -5, 25, -5, 8, -66, 29, 124, 24, -121, 116, -24, 84, -99, 62, 0, -114, -42, -93, -121, 56, -116, 83, -25, 35, 48, 85, -59, -32, 85, 69, 112, 27, -113, 16 ]
The opinion of the court was delivered by Valentine, J.: This was a criminal prosecution against George Balch and R. M. Watson for an alleged criminal libel. The case was tried before the court and a jury; and the defendants were found guilty, and each sentenced to pay a fine of $10, and each adjudged to pay one-half of the'costs of the suit. The defendants now appeal to this court. The alleged libel was the circulation, on November 6, 1882, in Chase county, Kansas, of the following printed article, to wit: “Voters of Chase County: 'The people of Chase county have not forgotten the mutilation or changing of the election returns one year ago; and is it not time the people should know who the parties were that made the changes? The facts looking in that direction have as yet never been made public, and perhaps never will, but circumstances often show facts that cannot be controverted; and in this case if Mr. Norton was guilty of the said mutilation, was not Mr. Cars-well equally so? It is said upon reliable authority that Mr, Norton and Mr. Carswell were together all the evening and the night this deed was committed, in fact slept together in Mr. Norton’s room in the court house. If they were together, as is said, is it possible that Mr. Norton would do so. dastardly a trick without the knowledge and consent, if not. the assistance of Mr. Carswell? Voters, think of this. Also, that it is a well-known fact that this said Carswell worked for and supported, with all his might, Mr. Norton, for the office of sheriff of Chase county. Can you consent to intrust in the hands of a character such as an action of this, kind would indicate, the most important office in the county, that of county attorney? George Balch.” It appears from the evidence, among other things, as follows: “That the defendant R. M. Watson was given the manuscript from which the alleged libelous article was ‘set upr and printed by one Harris; that the name of George Balch, defendant, was signed thereto; that neither the manuscript nor his signature was in the handwriting of the defendant George Balch; that defendant Watson set up the article alleged to be libelous, printed it, and delivered it, and gave all the printed copies to the said Harris, and was paid for the same as a job printer, which was the only connection he was shown to have had with the alleged libelous article; that the prosecuting witness, C. H. Carswell, was at the time the regular democratic nominee for county attorney, to be voted for at the November election, 1882; that the prosecuting witness, Carswell, did not procure, cause, or know of the changes or alterations made in the election returns as stated in said alleged libel; that the defendant George Balch admitted to the prosecuting witness, Carswell, that he had published said alleged libelous article.” In November, 1881, the time referred to in the alleged libelous article, there were three candidates for sheriff — William Norton, E. H. Barrington, and the defendant Balch; and the changes referred to were made by taking votes from Balch and Barrington and adding them to Norton. The evidence further shows: “That prosecuting witness, Carswell, stated to P. J. Norton, in the presence of one C. Berst, that ‘they had made too many changes from Balch to Norton; that they should have taken less votes from him [Balch], and more from Barrington; that the greenbackers were watching every vote for their candidates; that Balch, the defendant, was at the time greenback candidate for sheriff, and has been at all times and for years past a legal voter of Chase county, Kansas.” The defendant George Balch did not appear as a witness, and did not testify in the case; and whether the defendant .R. M. Watson was a witness or testified in the case, the record does not show. After all the evidence was introduced in the case, and after the charge of the court was given to the jury, the county attorney proceeded to make an argument in the case, when the following proceedings occurred, as is shown by the record, which proceedings read as follows: “The opening argument of the plaintiff was made by the county attorney, who in the course of his remarks to the jury said ‘That it was in evidence that the libel charged in the information was circulated all over the county, with the name of the defendant George Balch printed thereto; that the de fendant Balch knew it was so circulated; that this fact made a prima fade case against him; that the defendant Balch had not offered any testimony denying that he signed and circulated the libel; that he had failed to go on the witness stand (emphasizing and pointing to the witness chair) and deny that he had not signed or circulated that libel/ Here the •county attorney was requested to stop by defendant’s counsel, who then and there excepted to the remarks of said county attorney; that upon the attention of the court being called to the said remarks, he informed the county attorney that they were improper and could not be made, and stated to the jury that they should not pay any attention to the same; that under the law the defendants, or either of them, had a perfect right to refrain from testifying without having the failure to testify commented on or even alluded to by the state; that the jury would violate their duty if they considered at all the failure of defendant Balch to testify; that thereupon the county attorney turned to the jury and stated to them ‘that he had forgotten, and had probably gone beyond what he should have done,’ and proceeded in his argument without further allusion to the defendant’s (Balch’s) failure to testify.” There are several questions involved in this case, and some of them are difficult. The first question that we shall consider is with reference to the statement made by the county attorney to the jury, calling their attention to the fact that the defendant Balch had not testified in the case, and had not denied, as a witness, that he had signed and circulated the alleged libelous article. This statement was in violation of law, and under our own statutes and the decisions of other courts under similar statutes, we think it will require a re-' versal of the judgment of the court below, and the granting of a new trial. Section 215 of the criminal code provides, among other things, that defendants in criminal cases may testify in their own behalf if they choose to do so; but also provides “that the neglect or refusal of the person on trial to testify . . . shall not raise any presumption of guilt, nor shall that circumstance be referred to by any attorney prosecuting in the case, nor shall the same be considered by the court or jury before whom the trial takes place.” (Laws of 1871, ch. 118, §1; Comp. Laws of 1879, ch. 82, §215.) The decisions above referred to are as follows: Long v. The State, 56 Ind. 182; same case, 26 Am. Rep. 19; Hatch v. The State, 8 Tex. Ct. of App. 416; same case, 34 Am. Rep. 751; Commonwealth v. Scott, 123 Mass. 239; same case, 25 Am. Rep. 87; Austin v. The People, 102 Ill. 261; The People v. Tyler, 36 Cal. 522; The State v. Graham, (decided by the supreme court of Iowa, October 19, 1883,) 17 N. W. Rep. 192. • It must be remembered that this statement of the county attorney was not provoked or called forth by anything said by the defendant.or his counsel; nor was it said incidentally in some argument addressed to the court; but it was said in an argument addressed to the jury, and in an argument upon the merits of the ease, and for the purpose of influencing the jury and obtaining from them a verdict that the defendant was guilty of the offense charged. In all probability, this statement was made innocently and inadvertently by the county attorney, as he had been acting in that capacity only a very short time, and this was among the first cases prosecuted by him. But still, the rights of the defendant cannot be ignored or overlooked for that reason; nor can the principle be tolerated that convictions for violated law may be procured or brought about by the inauguration and accomplishment of other violations of law. It is also true that in this case the court below instructed the jury that the statement made by the county attorney should not be allowed to work any prejudice to the rights or interests of the defendant. But, under the authorities, the evil done by such an infringement of the law — an infringement of law by the prosecuting officer of the state — cannot be remedied or cured by any mere instruction from the court. The only complete remedy, if the defendant is convicted, is to grant him a new trial on his motion. Of course, if he does not want the new trial, or does not make a motion therefor, he should be sentenced. The defendants also claim that the case was tried in the court below upon an erroneous theory. The defendants asked the court to give several instructions to the jury, embodying, in substance, the proposition that if the said supposed libelous article was circulated only among the voters of Chase county, and for the purpose of giving them truthful information concerning the character of C. ET. Carswell, who was then a candidate for the office of county attorney, and merely for the purpose of enabling such voters to vote intelligently upon the question as to who was the most suitable person to fill such office, and the same was circulated in good faith and for no bad purpose, then that the defendants should be acquitted. One of said instructions reads as follows: “1. It is proper, justifiable, and considered in law privileged, for any voter to discuss publicly, in writing or orally, the qualifications, attainments, character and acts of any person who offers himself as a candidate for a public office, and who as such candidate solicits the votes of voters for such office. But such discussion must be for the purpose of ascertaining the truth in relation to such candidate, that an intelligent ballot may be cast for or against such candidate, and must be confined to such purpose and within reasonable limits; and if such discussion shall be actuated by malice, or for the purpose of injuring such person, it cannot be considered justifiable or privileged.” The court refused to give each and all of the instructions asked for by the defendants, and in lieu of the instructions asked for by the defendants gave the following instructions: “But it is proper at this point to instruct you that the general rule that the law presumes malice from the fact of the publication of libelous matter, unless truth and good motives are shown, is subject to some exceptions. “The law recognizes under certain peculiar circumstances what are termed privileged communications, that is, certain communications which in their nature and circumstances are such, that although containing defamatory matter, they are held in their general tendency to be beneficial rather than hurtful, if made honestly, and with a view to the public welfare or advantage, and for that reason the rule is relaxed as to the inference of malice from the fact of publication. “Somewhat of this nature are fair and pertinent criticisms on the qualifications of candidates for office, addressed to the electors whose votes the candidates ask'. “The true test in such cases is the good faith and Jionesty of the publication. Was it made for the public benefit, or was the occasion simply a cloak to cover malice? “Malice in such cases need not be hatred or ill-will, but any reckless or wanton disposition to do a wrongful act without excuse or justification.” Prior to the giving of the foregoing instructions, the court had given all necessary instructions with reference to the general law of libel, and the law of this case, except that it had not given any instructions with reference to privileged communications or conditionally privileged communications. These prior instructions, without the modifications contained in these subsequent instructions, would have required the jury to find the defendants guilty. They were in substance, that if the supposed libelous matter contained in said circular was defamatory and untrue, malice should be presumed and the defendants found guilty, notwithstanding the fact that the publication thereof might have been in good faith, and the defendants- might have believed the same to be true. And the subsequent instructions above quoted relating to privileged communications were given as modifications, explanations, limitations or exceptions to the rule of law previously enunciated. The court itself seems to call them “exceptions.” It is difficult to say that the instructions of the court below are erroneous; and yet that portion of the instructions relating to privileged communications is so vague and indefinite as possibly to render the entire instructions, taken as a whole, misleading, delusive, and erroneous. The court does not say that any communications may ever be so privileged/as to overturn the rule of presumptive malice, or to render such rule inapplicable or not relevant under the facts of the case; but the court simply says, that in some cases, and under “peculiar circumstances,” “the rule is relaxed.” Neither does the court say in express terms that the communications might under any circumstances be so privileged as to authorize an acquittal of the defendants. Something of this kind, we think ought to have been said. The instructions with regard to constructive, or presumptive malice, required it; and the instructions with reference to privileged communications should have been made more explicit and definite than they were. J If the supposed libelous article was circulated only among j; the voters of Chase county, and only for the purpose of giving what the defendants believed to be truthful information, l and only for the purpose of enabling such voters to cast their ballots more intelligently, and the whole thing was done in ¡good faith, we think the article was privileged and the defendants should have been acquitted, although the principal (¡matters contained in the article were untrue in fact and de- ¡ rogatory to the character of the prosecuting witness. (Towns¡¡hend on Slander and Libel, §§241, 243, 244, 247, 209; 2 Wharton’s Crim. Law, 8th ed., §1636; 1 Russell on Crimes, 244, 245; Commonwealth v. Clapp, 4 Mass. 163; Sweeney v. Baker, 13 W. Va. 160, 183; same case, 31 Am. Rep. 758, 759; White v. Nicholls, 44 U. S. 266; Brow v. Hathaway, 95 Mass. 239; Lewis v. Chapman, 16 N. Y. 369; Klinck v. Colby, 46 id. 427; note to Munster v. Lamb, 23 Am. Law Reg., N. S., 22, et seq.; Briggs v. Garrett, 18 Cent. Law Jour. 109, and note, page 112.) , Generally, we think a person may in good faith publish jwhatever he may honestly believe to be true, and essential jto the protection of his own interests or the interests of the ¡person or persons to whom he makes the publication, without Í1 immitting any public offense, although what he publishes ay in fact not be true and may be injurious to the character ’ others. And we further think that every voter is interested in electing to office none but persons of good moral character, and such only as are reasonably qualified to perform the duties of the office. This applies with great force to the election of county attorneys. With the view that we have taken of the questions already discussed, it is not necessary to discuss any of the other questions raised in this case. The judgment of the court below will be reversed, and the cause remanded for a new trial. All the Justices concurring.	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The opinion of the court was delivered by Horton, C. J.: This was an action brought by John S. Gilmore, the proprietor and publisher of the Wilson County Citizen, against the township of Center, in Wilson county, to recover the sum of $89.50, with interest, for publishing a notice of a special election held May 30, 1882, in the town ship, upon a proposition for the township to subscribe to the capital stock of a railroad company proposing to construct a railroad through the township. To the petition, the plaintiff in error, defendant below, interposed a general demurrer, which was. overruled by the court, and j udgment rendered for the claimant. The ruling upon the demurrer is complained of. The question is, whether the township of Center is liable to pay for publishing the notice of the special election ? The election was ordered by the board of county commissioners of Wilson county, under §§1-5, ch. 107, Laws of 1876. (§§68-72, ch. 84, Comp. Laws of 1879.) Section 3 of said chapter prescribes among other things that— “The commissioners . . . for such township . . upon the presentation of the foregoing' petition, and such other conditions as may be deemed advisable by the authority ordering such election to the chairman of the board . . . shall convene and make an order, which order shall embrace the terms and conditions set forth in the petition, and shall fix the time for holding said election, which shall be within sixty days from the day on which the commissioners . shall be convened.” Section 4 reads: “Thirty days’ notice of such election shall be given in some newspaper published or having a general circulation in such . . . township, .■ . . and the election shall be held and the returns made and the results ascertained in the same manner as provided by law for general elections.” Section 8 of said chapter further prescribes: “Before any railroad company shall be entitled to receive any bonds issued in pursuance of the foregoing provisions for the stock of such company, said company shall deliver to the treasurer of such . . . township stock in its said road equal in amount with the bonds authorized to be issued, dollar for dollar.” These provisions make it apparent that the board of county commissioners in calling the special election of 30th of May, 1882, acted simply as the agent of the township of Center. As the board of county commissioners has the authority to order the election, and as such order must fix the time for holding the election, and also embrace the terms and conditions set forth in the petition presented to the board, it is fairly inferable that the commissioners, as the agents of the township, may cause the notice of the election to be published. Therefore, we think that the township is liable for the publication of the notice of the election. The voting or not voting of the bonds in Center township affects the tax-payers of that township, but not the tax-payers of the other townships of Wilson county. It seems but just, therefore, that the township interested should be liable for the expense of the publication of the notice of the election. There are some expressions in the opinion of Thacher v. Comm’rs of Jefferson Co., 13 Kas. 182, somewhat conflicting with these views. It does not follow, however, that because the county of Jefferson was liable under the facts in that particular case, that the township of Center is not liable in this. The decision in Thacher v. Comm’rs, supra, was made in 1874. The statute referred to in that decision is ch. 90, Laws of 1870. The election in this case was ordered under §107, Laws of 1876. Our conclusion is, that the township should pay for publishing the notice of the election, and also pay the expense of issuing the bonds voted by the tax-payers of the township at such election. The judgment of the district court must therefore be affirmed.	[ -12, 108, -71, -100, -86, -96, 112, 24, 72, -79, -91, 115, -87, -46, 20, 59, -9, 111, 85, 107, 84, -13, 55, -30, -110, -77, -125, -51, -77, 73, -10, -9, 77, 32, 10, 21, -58, 14, -59, -36, -122, -125, -87, -23, 89, 74, 60, 124, 112, 79, 17, -94, -14, 46, 24, 99, 41, 44, -3, -127, -127, -71, -65, -121, 127, 14, 17, 87, -104, -125, -24, -82, -104, 53, 16, -23, 119, -89, -122, -12, 41, -71, 9, 102, 39, 1, -91, -17, -20, -87, 46, -46, 29, -25, -122, 25, 106, 46, -76, -99, 101, 80, 7, -2, -92, 4, 25, 124, 5, -98, -78, -90, -113, 116, -98, 3, -57, -79, -80, 113, -28, -78, 92, 102, 50, 27, -113, -116 ]
Per Curiam: The defendant in this case was charged with selling intoxicating liquors without a permit, and was found guilty, and fined $100, and adjudged to pay the costs of suit. The trial was had before the court and a jury. After all the evidence on the part of the state was introduced, the defendant moved the court to require that the state elect upon which transaction under the evidence it would rely for a conviction, and the court sustained the motion, and the state then elected in the following manner, to wit: “The state for a conviction relies upon a sale of intoxicating liquor by defendant to James Carson; ” to which election the defendant objected, and moved the court to require the state to make its election more definite and certain in certain particulars, which motion the court overruled, and the defendant excepted. It appears from the evidence, that in November, 1882, James Carson purchased both beer and whisky of the defendant, and purchased the same at various times. Under the authority of the cases of The State v. Schweiter, 27 Kas. 500, 512; and The State v. Crimmins, j ust decided, and for the reasons given in these cases, we think the court below should have required the state to make its election more definite and certain. The election, as will be seen, was indefinite as to time, indefinite as to the particular sale to James Carson, and indefinite as to the kind of liquor sold to James Carson. It is possible that the election was sufficient under the circumstances, except as' to the kind of liquor sold; and with respect to the kind of liquor sold, the election was certainly insufficient; The county attorney could certainly have elected as to whether he would rely for a conviction upon a sale of whisky or a sale of beer; for the evidence clearly showed that the defendant sold both whisky and beer, and there was no uncertainty under the evidence with respect to the character of the liquors sold. Under the evidence, the beer was unquestionably beer, and the whisky was unquestionably whisky. Eor this failure on the part of the court below to require the state to make its election more definite and certain, and upon the authorities above cited, the judgment of the court below will be reversed, and the cause remanded for a new trial.	[ -16, -22, -3, -99, 58, -16, 42, -100, 74, -29, -73, 83, -23, -46, 5, 113, -77, 127, 117, 123, -36, -94, 23, 65, -74, -13, -119, -57, 53, 104, -9, -3, 76, -76, 66, 117, 102, -57, -63, -40, -118, -123, -39, -23, 122, -70, 48, 123, 82, 11, 97, -98, -29, 46, 29, -53, 73, 40, -53, 29, 64, -7, -103, -123, 45, 22, -79, 102, -101, -121, -40, 62, -104, 17, 0, -8, 123, -90, 6, -44, 15, -87, -120, 98, 34, 33, 29, -17, -32, -120, 45, 47, -99, -90, 24, 89, 75, 42, -66, -35, 102, 18, 13, 126, -31, -43, -47, 60, 0, -121, -106, -77, -113, 56, -124, 86, -49, -89, 48, 69, -49, -2, 92, 84, 114, 27, -115, 84 ]
The opinion of the court was delivered by Brewer, J.: On March 20, 1878, defendant in error obtained in the district court of Harvey county a judgment against plaintiff in error, quieting his title to certain real estate in said county. The only service made was by publication, and there was no appearance on the part of defendant. On March 9, 1880, the defendant filed his motion, answer and affidavit, asking to have said judgment opened, and he be permitted to defend. Notice was duly served on plaintiff In October, 1880, the plaintiff filed his affidavit for the continuance of the hearing of the application, in order that he might obtain testimony to show that defendant had notice prior to the judgment, and thereupon the court on this application granted the continuance. On June 3,1881, the plaintiff moved to strike from the files the affidavit and answer of the defendant, on the ground that neither was verified as required by law. This motion was overruled, and thereupon, on application of the defendant, leave was given to him to file an amended application within sixty days. After the expiration of the sixty days, and on the 6 th of August, 1881, defendant, showing reasons for his delay, obtained leave to file such amended application at any time before the 10th of August, and before that time filed an amended affidavit and answer. Thereafter, on the 28th of August, 1882, the application coming up for hearing, the court refused to open the judgment and to let the defendant in to defend. Upon this ruling the defendant comes to this court. This application was made under § 77 of the code, which provides that “a party against whom a judgment or order has been rendered without other service than by publication in a newspaper, may at any time within three years after the date of the judgment or order have the same opened, and be let in to defend.” By this section, three things are required: First, that the applicant give notice; second, that he file a full answer, and if required by the court, pay all costs; and third, that he make it appear to the satisfaction of the court by affidavit that during the pendency of the action he had no actual notice thereof in time to appear in court and make his defense. Now the original application fully complied with all these requisites. It was filed within three years — in fact, within two years. Notice was given. No question is made as to its sufficiency, and indeed cannot be, for if there was any defect in it, it was waived by the appearance of both parties in court. The answer contained a full defense, showing that the defendant was the actual owner of a one-twelfth interest in the land. His affidavit alleged positively that he had no personal knowledge whatever of the pendency of said suit until after the rendition of judgment. The objection to this affidavit is, that it states that defendant had no personal knowledge, while the language of the statute is, that he had no actual notice. The subsequent affidavit uses the language of the statute, but we think the original affidavit sufficient, and that an allegation of a want of personal knowledge is for the purposes of this section equivalent to an allegation of a want of actual notice. Counsel for defendant in error contends that the trial court has a wide discretion in applications of this kind, and that as the statute requires that the defendant make it appear to the satisfaction of the court that he had no actual notice, that when such court denies the application we must presume that he was not satisfied, and have no means of determining from the record that he was in fact satisfied. To use his own language : “This requirement of the statute seems to lodge a discretion in the breast of the trial judge which is not subject to the control of this court, and may only be questioned when its abuse is alleged. The ruling which the court made is equal to a finding that it was not satisfied, and we can conceive no method by which this court can say that the court below was satisfied.” We do not agree with counsel in this view of the statute. We think the rule correctly stated by Mr. Justice Maxwell, of the supreme court of Nebraska, in his work on Pleading and Practice, 3d ed., page 68, as follows: “The application may be made as a matter of right, and when a party brings himself clearly within the statute the court has no discretion in the matter, but must grant the application.” (See also Beckwith v. Douglas, 25 Kas. 235.) The statute, it is true, says that the court must be satisfied; but it also provides that it is to be satisfied by affidavit; and we can examine the affidavit as well as the trial court and determine whether it was such as ought to have satisfied, and if it ought we must hold it sufficient. Indeed, in order to do justice to both parties, the provisions of that section should be construed in no technical way, but fairly and reasonably. Every party ought to have his day in court; and' while service by publication, which in fact imparts no actual notice, must be sustained, yet a party thus served, and who has in fact no knowledge of the proceedings, ought to be granted a hearing if it can be possibly done consistent with the rights of other parties. The section provides ample protection to third parties dealing with property on the faith of the judgment, and the plaintiff certainly has no right to complain if within a reasonable time, which by statute is fixed at three years, the defendant demands an opportunity of litigating with him the justice of the claim. In fact, a judgment upon service by publication is as between the parties in the nature of a conditional judgment, one which becomes final and absolute only at the expiration of three years, and liable in the mean time to be opened whenever the defendant brings himself within the provisions of the section. We think therefore that the original application was sufficient; and being sufficient, the defendant had a right to have the judgment opened and be let in to defend. But further, the original application having been filed within time, and such as unquestionably to challenge the consideration of the court, it had, under §§106 and 139, the right to permit amendments of the application. Again, it is insisted by counsel for defendant, that, as no final action was taken by the court on the application until after the lapse of three years, the right to open the judgment was lost, and this irrespective of the question of the sufficiency of the application. It will be remembered that the question was presented to the court at the October term, 1880, a time within three years, and then on the application of the plaintiff continued to the succeeding term, in order to enable him to obtain testimony showing that defendant did have actual notice. Now we do not think that such continuance, made at the instance of the plaintiff, prevented subsequent action on the application. The application was made in time, and defendant could not be deprived of his right by any action of the court, continuing the hearing at the instance of the plaintiff. Only one other matter requires notice. It was suggested in the oral argument that the record failed to show that it contained all the evidence on the hearing of the application, and hence that this court could not say that it was not shown by affidavit that the plaintiff did have notice prior to the judgment, the right to make such showing being given in said section. But on examination of the certificate of the judge signing the case-made, we find that he settles and signs it as containing all the evidence and proceedings had in the cause. This objection therefore also fails. We have not noticed what is said by counsel in reference to an accounting between partners and a probable negligence of defendant in respect to the affairs of the partnership, for the question now before us is not what ought to be done when the case is finally presented, but whether the defendant has a right to be heard. Our conclusion therefore is, that the court erred, that its order and judgment must be reversed, and the case remanded for further proceedings. All the Justices concurring.	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The opinion of the court was delivered by Brewer, J.: This case, in one form or another, has been to this court twice before. (24 Kas. 313; 28 id. 211.) On the final trial before the court without a jury in October, 1882, the following facts were found: Defendant in error was the owner of the original title to the land in controversy. On the third of May, 1871, it was sold to the plaintiff in error at a regular tax sale for the delinquent tax of 1870. A sale certificate was issued to him, upon which were indorsed the subsequent taxes of 1871, 1872, 1873, and 1874. On July, 1875, a tax deed was issued on such certificate, and on July 17, 1875, the tax deed was recorded. The subsequent taxes for 1875, 1876, 1877, and 1878, were paid by plaintiff in error. This action was commenced July 14, 1880. It further appears from the findings, that on the 20th of March, 1879, the defendant in error took actual possession of the land, which prior to that time had been vacant, and has remained in possession ever since; that in April, 1879, after possession had been taken by defendant in error and while it was so in his possession, the plaintiff in error entered upon the land and made improvements in the way of fencing, to the amount of $166.50. The court found that the assessment proceedings for 1870 were fatally defective, so that the tax title based upon such proceedings could not be sustained, but that the tax proceedings for the other years were regular and valid. Of this, in view of prior rulings of this court, no complaint is made. But the district court further found that the plaintiff in error was entitled to recover only the taxes paid within three years prior to the commencement of the action, to wit, the taxes of 1877 and 1878, and that he was not entitled to recover anything for the improvements placed on the land. Of these last two matters plaintiff in error complains, and these are the two questions presented in this case for examination. The first, stated in a general way, is this: In an action for the recovery of possession between the holder of a tax title and the original owner of the land, if the tax title is adjudged invalid, can the holder of such title recover all the taxes theretofore paid by him with interest, or can he recover only those paid within three years prior to the commencement of the suit? This question must be answered in favor of the recovery of all taxes. Counsel for plaintiff in error clearly exposed the fallacy of the rule laid down by the district court by this simple illustration: The tax deed may issue only after three years from the sale; therefore any mouey paid for the purchase of the tax title is lost to the purchaser after the issue of the tax deed, and unless his tax title is good he gets nothing. In other words, the statute is saying to a purchaser, buy at a tax sale, and at the end of three years you shall have a deed, and if all the proceedings are regular, you will get title; if irregular, you get nothing, unless you shall pay taxes subsequent to the purchaser, and then you will get only those taxes and interest. Now put it in another shape: The holder of the original title has five years within which to bring an action against the owner of a tax title. He waits four years from the record of the deed and brings his action. Some defect appearing in the proceedings, the tax title fails, and the original owner recovers possession. The purchaser at the tax sale, though he paid not merely the purchase-money but all subsequent taxes up to the time of his deed, gets nothing. He loses the land, and also the taxes he has contributed to the support of the government. Obviously, if this is the true rule of construction, the inducement to invest in tax sales is wonderfully abridged, for it is an accepted canon that tax proceedings, being proceedings in invitum, are to be strictly construed, and, unless in all things regular, fail to transfer title. And the general experience has been, that irregularities and defects are found in a large proportion of tax proceedings. The theory upon which this court has acted, which is the general rule of construction in other states, and which is the obvious policy of our statutes, is to secure to the tax purchaser either the land, or his tax investment with its large statutory interest. In that way it compels the prompt payment of taxes by holding out large inducements to tax purchasers to invest upon the delinquencies of original holders. Counsel for plaintiff in error have cited cases decided in this court, in which upon failure of the title, all taxes and interest have been awarded to the purchaser. (Smith v. Smith, 15 Kas. 290; Hoffmire v. Rice, 22 id. 749; Jeffries v. Clark, 23 id. 454; Fairbanks v. Williams, 24 id. 16; Morgan v. Comm’rs of Miami Co., 27 id. 89; Russell v. Hudson, 28 id. 99; Flint v. Douglass, 28 id. 414; Myers v. Coonradt, 28 id. 211.) This has been heretofore the understanding not merely of this court, but of the profession in general, to be the true interpretation of the statute, and we think it to be the correct one. The difficulty arises in the misunderstanding on the part of the district court as to the principle which’ underlies tax purchases. A tax purchase is not primarily a purchase of the lien, but a purchase of a title. Upon the payment of taxes by a tax purchaser he acquires no lien which he can foreclose as an ordinafy lien. (Corbin v. Young, 24 Kas. 198.) He simply purchases a title, and must rest upon that title until it is in some way challenged. If the proceedings are regular, his title is good; if simply irregular, and he takes possession, the statute of limitations may perfect his defective title, but he has nothing in the way of a lien he can enforce as such. He rests alone upon his title, aided it may be at times by the statute of limitations. His right to compensation for his taxes arises only when in some action his title is adjudged defective. In this respect it resembles proceedings under the occupying-claiinant law. Whatever improvements the occupying claimant may place upon land, he places upon the assumption of title, and he is entitled to no compensation therefor until his title is adjudged defective; and when adjudged defective, he may recover not only the value of the improvements made within three years, but also the value of all improvements made by him during his claim of title. So as to our tax proceedings: whatever payments of taxes are made, are made upon the theory of a purchase and claim of title, and until that claim of title is adjudged defective in some appropriate action, the purchaser can have no adjudication of a lien and no recovery of the taxes he has paid; and when it is adjudged defective he is entitled to recover all taxes paid. The legislature has placed no restriction and no other limitation. The ordinary statutes of limitation have no application to these proceedings. We think, therefore, the district court erred, and that the plaintiff in error should be entitled to a judgment for the full amount of taxes and interest. ■ The other question was rightly determined by the district court. It appears from the findings that in March, 1879, the defendant in error, the original owner, took possession. After he had taken possession, and while he was so in possession, the plaintiff in error entered upon part of the land and made certain improvements in the way of fencing. As to such improvements the plaintiff in error had no claim for compensation. A party may not claim the benefit of the occupying-claimant law unless he has full and actual possession. He may not go upon land which is in the actual possession of another, and place improvements with any right to compensation. He must first acquire the full and actual possession. The occupying-claimant law offers no inducements to a party to go on to land in the actual possession of another and make improvements on a claim of title. Whatever may be his pretense of title, it amounts to nothing until he has secured full possession. No scrambling for possession can be encouraged, and a party must be sure that he has full and actual possession before he can place any improvements thereon and claim the benefit thereof. In this, therefore, the district court ruled correctly. The judgment will be reversed, and the case remanded to the district court with instructions to give to the plaintiff in in error the full amount of taxes and interest paid by him as found by such court. All the Justices concurring.	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The opinion of the court was delivered by O’Connor, J.: This is an appeal from the denial of a petition to remove John C. Rubow as administrator of the estate of Michial Wayne Lohse, deceased. On June 3, 1967, Lohse was the driver of an automobile which collided with another driven by Horace Martinez. Both drivers and two passengers in the Martinez vehicle were killed. A third passenger with Martinez received serious injuries in the accident. Lohse had an automobile insurance policy issued by Western Indemnity Co. of Fort Scott. The policy provides liability coverage for bodily injuries and death with limits of $10,000 per person and $20,000 per accident. The insurance company petitioned the probate court of Neosho county for appointment of an administrator of the Lohse estate, and John C. Rubow, a Chanute attorney, was appointed September 28, 1967, when Lohse’s parents refused to serve. At all times thereafter, Rubow acted as both administrator and attorney for the estate. On October 19, Jesse Martinez, the injured survivor, filed a claim against the estate for damages in the amount of $22,861.36. Another claim for $35,876.85 was filed November 10 by the mother of Horace Martinez for the wrongful death of her son. On Rubow’s demand, the insurance company, through its attorney, Mr. Charles Henshall, undertook defense of the aforesaid claims pursuant to the terms of the policy. An extensive investigation of the accident was conducted by the insurance company, Henshall, and Rubow. Finally, the insurance company acceded to Rubow’s demand that the personal injury claim of Jesse Martinez be settled within policy limits for $9,500. The wrongful death claim for Horace Martinez could also have been settled for $9,500, but Rubow refused to demand settlement thereof because his investigation had revealed some evidence that Martinez may have been contributorily negligent. The insurance company’s offer to settle for $2,000 was rejected by Martinez’ mother. Thereupon, the claim was transferred to district court, and on May 20, 1968, a jury returned a verdict against the Lohse estate for $24,584.85. On April 15, and on June 26, 1968, two more claims were filed against the estate for the wrongful deaths of the other passengers in the Martinez automobile — one for $25,000, the other for $35,700. The disposition of these claims is not shown by the record. The insurance company subsequently paid its per person policy limits of $10,000 in partial satisfaction of the judgment in the Horace Martinez case. The attorney for the judgment creditor requested Rubow to sue the insurance company in an effort to recover the balance of the judgment in excess of policy limits. Rubow refused on the basis that there would be no merit in such an action. The judgment creditor and the parents of Lohse then filed a petition in probate court for appointment of a special administrator of the estate for the express purpose of instituting suit against Rubow and the insurance company to recover an excess judgment. The petition was denied and a purported appeal was dismissed by the district court under authority of K. S. A. 59-2401. Subsequently, the judgment creditor and the surviving parent of Lohse (hereinafter referred to as petitioners or appellants) filed the present petition in probate court to remove Rubow as administrator o£ the estate. The petition alleged that the insurance company had procured Rubow’s appointment as administrator, and he was serving as its employee; that notwithstanding the judgment creditor’s willingness to settle the Martinez claim within policy limits, Rubow, in violation of his fiduciary duties and contrary to the best interests of the estate, refused to demand settlement within those limits; that through his negligence and bad faith, Rubow failed to protect the estate; that he refused to file suit against the insurance company to recover a judgment in excess of policy limits; and that he had failed to marshal all the assets of the estate and should be removed as administrator. After a hearing in probate court, the petition was denied on the ground it was barred by the doctrine of res judicata because of the earlier adverse determination of the petition for appointment of a special administrator. Petitioners appealed to the district court where the court declined to apply the doctrine of res judicata and heard the matter de novo on the merits. At the close of the evidence, the court made findings of fact, and concluded in substance that Rubow had fulfilled his duties and obligations as administrator, and had acted in good faith. Judgment was entered accordingly, and this appeal followed. K. S. A. 1967 (now 1970) Supp. 59-1711 provides in part: “. . . Whenever a fiduciary fails or refuses to perform any of the duties imposed upon him by law or by any lawful order of the court, he may be removed and his compensation may be reduced or forfeited, in the discretion of the court.” The law is clear that an administrator of an estate acts in a fiduciary capacity, and has a duty to exercise the utmost good faith in all his transactions affecting the estate. (Stump v. Flint, 195 Kan. 2, 402 P. 2d 794; In re Estate of Anderson, 175 Kan. 18, 259 P. 2d 180.) As in the case of any attorney-client relationship, the attorney for an administrator is also cast in the role of a fiduciary and binds himself to the highest degree of fidelity and the most scrupulous good faith. (See, Kirwin v. McIntosh, 153 Kan. 395, 110 P. 2d 735; Haverty v. Haverty, 35 Kan. 438, 11 Pac. 364.) The import of the district court’s findings is that Rubow was not guilty of any misconduct warranting his removal as administrator. These findings, if supported by substantial, competent evidence, will not be disturbed on appellate review. (Jensen v. Jensen, 205 Kan. 465, 470 P. 2d 829; In re Estate of Bernatzki, 204 Kan. 131, 460 P. 2d 527.) Appellants first assail the district court’s finding that Rubow fulfilled his obligation to protect the estate on the ground that he failed to demand settlement of the Horace Martinez claim by the insurance company within policy limits. The parties concede that the duty of the insurer to settle within policy limits is not contingent upon whether or not the insured demands settlement. (See, Bollinger v. Nuss, 202 Kan. 326, 449 P. 2d 502.) Nevertheless, appellants contend that as part of the administrator’s overall obligation to protect the assets of the estate, Rubow had no alternative but to demand the claim be settled within the limits of the policy. At the time of Rubow’s alleged breach of duty, the personal injury claim of Jesse Martinez for $22,861.36, and the wrongful death claim of $35,876.85 for Horace Martinez, were pending against the estate. The only assets in the estate consisted of $3,400 against which a claim had been allowed in the amount of $1,300. Initially, Rubow demanded the settlement of both claims for $9,000 each, which, of course, would have been within the limits of the policy. Had the cases been settled at that figure, the available insurance coverage would have been reduced to $2,000. The estate, however, was still faced with the possibility of two more wrongful death claims being filed. Rubow withdrew the demands for settlement in order to make further investigation of the accident. After determining that there was some evidence that the other driver, Horace Martinez, may have been contributorily negligent, he did not renew his demand to settle the driver’s case, but did demand that the insurance company accept the offer of Jesse Martinez to settle his personal injury claim for $9,500. The essence of Rubow’s testimony was that in his judgment the best course of action for protecting the estate was for him to demand settlement of the Jesse Martinez claim for $9,500, defend the driver’s wrongful death claim because it offered the least risk, and if defeated, the remaining $10,500 insurance coverage might be adequate to protect the estate on the two remaining claims. In his opinion, the death claims for the two passengers in the Martinez automobile were potentially more dangerous to the estate than the driver’s claim. The fallacy of appellant’s entire argument on this point lies in the unwarranted assumption that Rubow, rather than the insurance company, was in sole control of the defense of these cases, and if he had demanded settlement of the driver’s claim, the insurance company would have been compelled to settle in order to avoid liability for an excess judgment. In a situation such as we have here, the administrator’s duty to exercise the utmost good faith implies honesty, fair dealing and adequate information, with the ultimate object of his acting in the best interests of the estate. Rubow could not have been expected to predict with exactitude the results of a trial, nor can it be said he acted in bad faith where he honestly believed or had cause to believe that the estate would be exposed to less risk if he did not insist the driver’s claim be settled for $9,500. The administrator’s actions must be gauged by the circumstances as they appeared at the time of the negotiations, not by what later developed after trial. These principles have been recognized with respect to the duty of an insurer to settle within policy limits (Bollinger v. Nuss, supra), and by analogy are applicable in scrutinizing the actions of a fiduciary in the present factual context. There was ample evidence by way of the testimony of Mr. Donald R. Newkirk and Robert L. Briley, long-time practicing attorneys of the Kansas bar, that Rubow acted properly under the circumstances, and that the course of action taken was the one most likely 'to preserve the assets of the estate. The district court’s finding that Rubow “. . . did in good faith exercise his own judgment in not demanding a settlement from the insurance company.” was supported by substantial, competent evidence, and will not be disturbed. The finding that Rubow properly refused to demand settlement of the Horace Martinez claim adequately disposes of appellant’s further complaint about Rubow’s refusal to sue the insurance company in an effort to recover the amount by which the judgment against the estate exceeded the limits of the policy. Whether an action against the insurance company would have been meritorious is not the issue in this case. The question here concerns Rubow’s alleged dereliction of duty as administrator in failing to institute suit. The district court found that Rubow was justified in acting as he did. The demand that he take action against the insurance company was made by the attorney for the judgment creditor. In effect, the judgment creditor was asking Rubow, as administrator of the estate, to risk, and possibly expend, the limited assets of the estate in an attempt to recover money from the insurance company which would benefit only a single judgment creditor. While Rubow, Newkirk, and Briley testified that in their opinions an action against the insurance company would be without merit, the fact remains that if such action is warranted, the judgment creditor has available the remedy of garnishment. (Bollinger v. Nuss, supra.) Under the circumstances, the judgment creditor is in no position to complain of Rubow’s refusal to file suit. The most serious charge leveled by appellants is that Rubow should be removed as administrator because he converted assets of the estate to his own use. This charge stems from a declaratory judgment action brought by the insurance company against the estate immediately after Rubow was appointed. In that action the company sought an adjudication that the policy of insurance issued to Lohse was void because of fraudulent representations made in tire application. Rubow, in his capacity as administrator, and acting as his own attorney, filed an answer demanding full protection of the policy for the estate and also attorney’s fees. About six weeks later the declaratory judgment action was voluntarily dismissed at the cost of the insurance company. The company agreed to pay Rubow $250 as a compromise settlement of his claim for attorney’s fees. Rubow told the probate judge about receiving the fee, and later recited the receipt thereof in a petition filed in the estate for allowance of fees. The $250 was deducted from the fees allowed Rubow by the probate court. The thrust of appellant’s argument is that the fee received by Rubow became part of the assets of the estate and should have been accounted for as such. Assuming the argument is valid, we fail to see how the estate would have benefited in the long run. The administrator of an estate is entitled to an allowance for compensation and expenses for himself and his attorney, the same to be paid from the assets of the estate. (K. S. A. 59-1717; In re Estate of Eyth, 157 Kan. 268, 139 P. 2d 378.) An insured is entitled to an allowance of attorney’s fees where the insurance company “. . . has refused without just cause or excuse to pay. . . .” (K. S. A. 40-256.) This includes situations where there is a dispute over policy coverage. (See, Buchanan v. Employers Mutual Liability Ins. Co., 201 Kan. 666, 443 P. 2d 681.) The fee paid Rubow by the insurance company was for his services as attorney for the insured. The fact that he was also the adminis trator of the estate at the time is merely incidental and of no serious consequence. The payment of the fee actually operated to the benefit of the estate. It was fully accounted for by Rubow and was deducted from the fee to which he otherwise would have been entitled as administrator-attorney in the probate proceeding. By no stretch of the imagination did Rubow convert assets of the estate to his own use. Likewise, appellant’s assertion that by accepting the fee, Rubow became an agent and employee of the insurance company, thus giving rise to a conflict of interest with his position as administrator of the estate, is completely groundless. Other contentions advanced by appellants have been considered and found to be without merit. After a careful review of the record, we are satisfied that the trial court’s findings are supported by substantial, competent evidence, and the court properly concluded there were insufficient grounds to order Rubow’s removal as fiduciary. The judgment is affirmed.	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The opinion of the court was delivered by Fontron, J.: On March 1, 1967, the plaintiff, Thomas Gilbert Weigel, accompanied by appointed counsel, entered his plea of guilty to second-degree burglary after the state had first dismissed a charge of grand larceny. On his plea of guilty the trial court sentenced Weigel to the Kansas State Penitentiary for a term of not less than five nor more than ten years, and at the same time revoked his probation on a previous burglary conviction. The sentences were ordered to run concurrently. The present action is brought under K. S. A. 60-1507. It attacks the sentence pronounced on March 1, 1967, on the premise that Weigel’s plea was not voluntarily entered. The trial court found it unnecessary to appoint counsel or to hold an evidentiary hearing, and overruled Weigel’s motion on the ground that the records conclusively showed he was entitled to no relief. The present appeal followed. For reasons hereinafter stated we conclude the trial court was correct in its judgment. The primary issue for us to decide is whether an evidentiary hearing should have been held, with Weigel being present in person and represented by counsel. The answer to this question depends on the basis of Weigel’s asserted claim that his plea was involuntary. A careful examination of Mr. Weigel’s motion leads to the con elusion that his plea was motivated not by coercion but by a desire, which we presume was not unnatural, to avoid being sentenced under the Habitual Criminal Act. (K. S. A. 21-107a.) The sum and substance of the allegations set out in his motion is that he was informed the county attorney would seek to invoke the provisions of the Act in the event he was tried and found guilty. The proceedings which transpired when Weigel was arraigned and entered his plea of guilty clearly show, through the medium of his own statements, that he had conferred fully with his lawyer; that he was aware of the nature of the offense, the laws which pertained thereto, and the possible penalties which could be imposed under Kansas statutes; and that he desired to plead guilty to the charge of second-degree burglary then pending against him. It appears obvious that discussions concerning the entry of a guilty plea by Mr. Weigel had occurred between his own counsel and counsel for the state. It is equally obvious that those discussions culminated in these results: (1) The plaintiff’s plea of guilty to burglary as charged in the information; (2) the state’s dismissal of the larceny charge; and (3) the state’s forbearance from invoking the Habitual Criminal Act. There is nothing pernicious per se in what has sometimes been temed “plea bargaining.” A person accused of crime should be made aware of the alternatives with which he is faced so far as sentences are concerned. Among the obligations which defense counsel owes his client is that of advising him as to the range of pemissible penalties to which he may be subject in the event of a conviction, and to discuss with him very frankly the possible choices which lie before him. (Fields v. State, 195 Kan. 718, 720, 408 P. 2d 674; Addington v. State, 198 Kan. 228, 236, 424 P. 2d 871.) In State v. Byrd, 203 Kan. 45, 453 P. 2d 22, this court, speaking through Mr. Justice Fromme, explored the subject of plea discussions in some depth and accorded recognition to its proper place in the sensitive area of criminal justice. Nothing would be gained at this time by repeating what was said in the Byrd opinion. In the present case counsel was appointed to represent Weigel at his preliminary examination. At his arraignment Mr. Weigel requested reappointment of the same individual, a practicing attorney to whom the trial court referred as experienced and competent. It is clear from the dialogue which occurred throughout the arraignment proceedings that counsel had fully explained to his client the provisions of the statute under which the charge was drawn,- and the possible penalties for its violation. Weigel himself acknowledged there was nothing further about which he wanted to confer with his attorney. The plaintiff does not deny the fact that at the time of entering his guilty plea he received important and substantial concessions redounding to his benefit. That those benefits resulted from the plea discussions concerning which the plaintiff had full knowledge, cannot well be doubted. We view the record as disclosing no more than that Mr. Weigel, after consulting his counsel and being aware of the possible penalties, chose to plead guilty rather than proceed to trial. His exercise of that choice brought him advantages of consequence. We find nothing to indicate that his right to plead not guilty and stand trial before a jury was in any way infringed. (Whaley v. State, 202 Kan. 175, 446 P. 2d 397.) Other grounds alleged as vitiating Weigel’s plea of guilty are frivolous and merit no discussion. The judgment is affirmed.	[ 112, -24, -3, -65, 11, 96, 42, -8, 115, -77, 36, 115, 105, -50, 0, 120, 50, 61, 84, 121, -59, -73, 115, -55, -74, -5, -39, -43, -73, 79, -92, -74, 76, -96, -62, -43, 38, -120, -57, 92, -114, 5, -104, -44, -46, 0, 32, 57, 60, 11, 49, -98, -29, 42, 58, -39, 73, 44, 75, 61, -16, -103, -101, 31, 107, 22, -93, -90, -100, -121, 80, 46, -116, 57, 33, -24, 115, -106, -122, 117, 109, -101, 44, 102, 98, 35, 13, 106, -32, -127, 14, 39, -67, -90, -111, 81, 64, 36, -106, -103, 117, 86, 39, -16, -27, 20, 63, 100, 9, -113, -76, -109, -49, 118, -122, -71, -5, 37, 0, 97, -50, -26, 76, 67, 122, -101, -114, -43 ]
The opinion of the court was delivered by Fatzer, J.: The appellant, George R. Kennelly, entered pleas of guilty to three counts in the Information. Count One charged murder in the first degree (K. S. A. 21-401); Count Two charged forcible rape (K. S. A. 21-424), and Count Three charged grand larceny (K. S. A. 21-533). The district court heard evidence pursuant to K. S. A. 21-403, and sentenced the appellant to life imprisonment. On June 19, 1969, at approximately 8:00 a. m., the appellant entered the living quarters of his landlady, Mrs. Turner, and took $5,300 from her purse which was in the living room. Mrs. Turner entered from an adjacent room and was thereupon assaulted and struck upon the head. She was then taken to the bedroom and raped, and choked to death. On July 1, 1969, appellant was arrested in Spokane, Washington, for armed robbery. On July 11, 1969, he was returned to Kansas on a warrant charging grand larceny, and was interviewed by Wichita and Sedgwick County police. The appellant gave a full and complete electronically recorded statement of the crimes committed in Wichita, and which were charged in the Information. Prior to interrogation and confession, the appellant was given each of the Miranda warnings, and expressed an understanding of his rights and his desire to talk with the police. On August 11, 1969, after preliminary hearing before the Court of Common Pleas, the appellant was bound over to appear in the district court on the first day of the next term, to answer the charges alleged against him. On August 15, 1969, an Information was filed in the district court charging the aforementioned offenses, and on August 19, 1969, the appellant was formally arraigned by the Honorable Howard C. Kline, judge of the district court. The same counsel who was appointed to represent the appellant at his preliminary hearing was reappointed to represent him in the district court. On September 23, 1969, the district court on its own motion appointed a commission to examine the appellant and it was determined he was competent to stand trial. On October 15, 1969, the appellant appeared with his attorney and entered a plea of guilty to each of the three counts contained in the Information. The appellant here contends the district court erred in accepting his pleas of guilty without first determining whether he was aware of the consequences of his pleas. He further contends the district court should have inquired of him as to the number of years he expected to serve for the crimes committed, and that the court should have requested him to recite in his own words the acts he committed which he thought would render him guilty. At the hearing of appellant’s pleas of guilty, the following proceedings took place before the Honorable Tom Raum, judge of Sedgwick district court: “The Court: All right. To establish for the record, you are George Rolland Kennelly? “The Defendant: Yes, sir. “The Court: That is your correct name? “The Defendant: Yes, sir. “The Court: You may let the record show the defendant is present in Court with his attorney, Mr. Royce Wallace. The State is represented at this hearing by Mr. Keith Sanborn, County Attorney for Sedgwick County, Kansas, and Mr. Russell Grant, Deputy County attorney for Sedgwick County, Kansas.” “[The Court:] Mr. Kennelly, although you have been formally arraigned, the Court will inform you once again that you are charged in the Information filed by the State in Count I with the offense of murder in the first degree in violation of Section 21-401, Kansas Statutes Annotated. “In Count II of the Information, you are charged with the offense of forcible rape in violation of Section 21-424, Kansas Statutes Annotated. “And in Count III of the Information, you are charged with the offense of grand larceny in violation of Section 21-533, Kansas Statutes Annotated. “Now you have discussed each one of these charges with your attorney Mr. Wallace? “The Defendant: Yes, Your Honor. “The Court: Do you understand, after discussing it with your attorney, fully what you are charged with? “The Defendant: Yes, sir. “The Court: In each count? “The Defendant: Yes, sir. “The Court: Do you have any question at all about the nature of any of these charges pending against you? “The Defendant: No. “The Court: Mr. Wallace has informed the Court that you wish to enter a plea of guilty to each of these charges as set forth in the Information. You have also discussed your plea with your attorney? “The Defendant: Yes, sir. “The Court: After discussing it with him, are you fully aware of the consequences of that plea? “The Defendant: Yes, sir. “The Court: You are aware that you are entitled to a jury trial in this case? “The Defendant: Yes, Your Honor. “The Court: And you are aware of the fact that you are not required to testify against youself or to testify, take the stand in this jury trial? “The Defendant: Yes, sir. “The Court: You understand that in the event of a conviction that you would have the right to appeal to the Supreme Court? “The Defendant: Yes, Your Honor. “The Court: You understand that in that appeal, if you could not afford counsel that the Court would appoint an attorney to represent you on your appeal? “The Defendant: Yes, Your Honor. “The Court: And do you understand that the Court would furnish you with a copy of the transcript— “The Defendant: Yes, Your Honor. “The Court: — for purposes of that appeal? You understand that you have a right to confront your accusers in this case? “The Defendant: Yes, Your Honor. “The Court: All right. You have discussed all of these matters with your attorney? “The Defendant: Yes, sir. “The Court: All right. Now, after your attorney has informed me that you wish to enter a plea of guilty in each of these counts, I will ask you: Is that what you personally wish to do? “The Defendant: Yes, Your Honor. “The Court: This is your individual decision in each of these counts? “The Defendant: Yes, Your Honor. “The Court: The Court asks you: Do you plead guilty because you are guilty? “The Defendant: Yes, Your Honor. “The Court: Have any threats or promises been made to you to induce your plea? “The Defendant: No. “The Court: In any of these counts? “The Defendant: No, sir. “The Court: Do you have any legal cause why sentence should not be imposed? “The Defendant: No, sir. “The Court: Is there anything you wish to add, Mr. Wallace, for the record? “Mr. Wallace: No; I believe the Court has covered all of the things that I desired to be covered.” The purpose of the allocution is to afford the accused the opportunity to present any complaint he may have against the integrity of the proceedings. (Davis v. State, 204 Kan. 372, 461 P. 2d 812; Knight v. State, 203 Kan. 652, 455 P. 2d 578.) Likewise, a plea of guilty in order to be valid must be freely, knowingly, and understandingly made. Otherwise it violates the constitutional guarantee of due process and is void. (Miller v. Hudspeth, 164 Kan. 688, 192 P. 2d 147.) However, it is not error for the district court to accept a plea of guilty where the appellant advised the court he understood the charges and discussed the consequences of his plea with his counsel. (State v. Washington, 198 Kan. 275, 424 P. 2d 478.) It is universally accepted that an accused’s voluntary plea of guilty in a criminal case is a confession of guilt of the crime charged and every fact alleged therein, and is legally the most formal and binding confession possible for him to make. (McCall v. State, 196 Kan. 411, 411 P. 2d 647; State v. Way, 204 Kan. 375, 377, 461 P. 2d 820.) While the appellant complains his rights were violated during questioning and confession, it is well settled that when a judgment and sentence are entered upon a plea of guilty, there can be no review of the sufficiency of the evidence. Any question of ad missibility is waived by entry of a plea of guilty. (Toland v. State, 200 Kan. 184, 434 P. 2d 550; Call v. State, 195 Kan. 688, 690, 408 P. 2d 668, cert. den. 384 U. S. 957, 16 L. Ed. 2d 552, 86 S. Ct. 1581.) The appellant’s claim he was not properly represented by his appointed counsel is .without merit. The burden of showing denial of effective assistance of counsel to the extent necessary to overcome the presumption of regularity of the conviction, is upon the defendant. (State v. Hemminger, 203 Kan. 868, 457 P. 2d 141, cert. den. 396 U. S. 1045, 24 L. Ed. 2d 689, 90 S. Ct. 696.) The appellant was represented by a competent and experienced attorney, who advised him of the nature of the charges against him and the penalties which might be imposed, and adequately represented him at all stages of the proceedings, including the allocution. The appellant stated he had full opportunity to confer with his counsel and that he understood the nature of the charges and the proceedings against him. There is absolutely nothing in the record to indicate the appellant’s pleas of guilty were not voluntarily and understandingly made, or that he was not diligently represented by counsel at all stages of the proceedings. The appellant lastly complains of the district court’s failure to complete the transcript by including the tape recording of questioning and confession. It is contended that by omission of such evidence from the transcript, this court cannot properly judge the correctness of the district court’s ruling in admitting the recording into evidence. The point is not well taken. In the first place, the appellant has made no showing of any need to have the recording transcribed into the record. Moreover, the police officer who made the recording of the questioning and confession knew its contents and testified at length as to its nature and purport. This evidence had no bearing upon the appellant’s guilt, but was heard by the district court pursuant to K. S. A. 21-403, to determine the sentence to be imposed upon conviction of murder in the first degree. The appellant stands convicted upon his voluntary pleas of guilty, and not upon his taped confession. Moreover, irregularities, if any, occurring after a plea of guilty cannot affect an otherwise valid plea. No prejudice to the appellant’s substantial rights have been made to appear, and the judgment is affirmed.	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The opinion of the court was delivered by Horton, C. J.: It is contended that as the petition charges carelessness and negligence upon the part of plaintiff in er* ror, defendant below, the court erred in instructing the jury that the plaintiff in error, defendant below, could recover under § 2, ch. 118, Comp. Laws of 1879. With the charge of carelessness and negligence eliminated from the petition, there are sufficient allegations in the petition to allow a recovery under the statute; hence the court committed no error in that regard. “A party aggrieved may seek his remedy either under the statute or under the common-law rule, and probably both at the same time, in the same action.” Section 2 of said chapter 118 is purely remedial. It does not abrogate the rule of the common law, but in certain classes of cases therein mentioned, substitutes another test of liability, in which- neither willfulness nor negligence is a necessary element. (Emerson v. Gardiner, 8 Kas. 452.) Complaint is next made of the instructions of the court. An examination of the record shows that no exceptions were taken to the instructions, or any of them, and in the motion for a new trial no error of law occurring at the trial is assigned. In this condition of the record, we cannot examine the record to ascertain whether the court committed any error in directing the jury. (City of Wyandotte v. Noble, 8 Kas. 444; Norton v. Foster, 12 id. 44; Nesbit v. Hines, 17 id. 316; Fowler v. Young, 19 id. 150.) There is sufficient evidence in the case to sustain the verdict and judgment; and a new trial will not be granted where the testimony is conflicting, or the verdict is against a mere preponderance. (K. P. Rly. Co. v. Kunkel, 17 Kas. 145; Harris v. Thompson, 23 id. 372.) The judgment of the district court will be affirmed. All the Justices concurring.	[ -80, 104, -16, -83, -24, -30, 34, -120, 81, -95, 39, 51, 109, -110, 20, 61, 114, -65, 81, 107, -42, -89, 6, -61, -74, -77, 83, 23, 49, 111, -28, -4, 76, 48, -54, -107, 103, -56, 65, -44, -126, -105, 41, -27, -7, 106, 120, 102, 86, 11, 113, 30, -13, 46, 25, -61, -23, 40, 74, -67, -48, -80, -102, 13, 93, 6, -77, 54, -100, 35, 126, 44, -116, 61, 1, -4, 48, -74, -125, 85, 109, -101, 9, 102, 98, 33, 29, 111, -72, -72, 46, -82, 29, -89, -112, 8, -53, 41, -74, -39, 53, 54, 38, -4, -29, -124, 89, 108, 0, -101, -112, -73, -113, 60, -106, 91, -61, -93, -108, 113, -36, -28, 92, 69, 19, -101, -98, -114 ]
The opinion of the court was delivered by Valentine, J.: This is an action in the nature of quo warranto, brought by the county attorney, of Shawnee county in the name of the state of Kansas, to oust the city of Topeka from exercising the power of licensing persons to sell intoxicating liquors within the city limits, and of imposing license taxes or charges upon such persons for the supposed privileges granted to them by the city. The defendant demurred to the plaintiff’s petition upon nearly all the statutory grounds, which demurrer, after a careful consideration by the supreme court, was overruled. (The State, ex rel., v. City of Topeka, 30 Kas. 653.) The defendant then answered to the plaintiff’s petition, by filing a general denial. The plaintiff then moved for judgment in its favor upon the pleadings, notwithstanding the defendant’s answer. This/motion was also overruled by the supreme court. A referee was then appointed, by the consent of the parties, to take testimony in the case; and such testimony was taken. Afterward a trial was had before the court, with the result hereafter stated. But before stating our final decision we shall make a few preliminary observations. ' We suppose it will be universally admitfed that no city in the state of Kansas has any power to license or authorize the sale of any intoxicating liquor, even for a legitimate purpose, and certainly not for any illegitimate or illegal or prohibited purpose; for no such power is or has been conferred upon any city of the state by any law now in force, and cities can exercise only such powers as have legally been conferred upon them. Indeed, all power to authorize or license the sale of intoxicating liquors has been entirely withheld from cities, and the exercise of such power by cities has been prohibited by the plainest implications. Only probate judges in the state of Kansas have the power at the present time to grant licenses or permits authorizing the sale of intoxicating liquors, and they can grant such licenses or permits only to druggists and manufacturers; and druggists and manufacturers can sell under such licenses or permits only for medical, scientific and mechanical purposes, and then only under certain prescribed rules and regulations fixed by statute. All other sales of intoxicating liquors, and all licenses for any other sales of the same, except such licenses as are issued by probate judges, are absolutely prohibited by law. We also suppose that whenever a municipal corporation usurps any power which might be conferred upon it by the sovereign power of the state, but which has not been so conferred, such corporation may be ousted from the exercise of such power by a civil action in the nature of quo warranto in the supreme court. (Const., art. 3, §3; Civil Code, §653, and decisions and statutes cited by counsel for plaintiff in the argument on the demurrer. ) Now the sovereign power of the state of Kansas, as in all governments by the people, is inherent in the people. They are the original source and fountain from which emanates all power, civil and political; and the various branches or departments of the government are simply the instruments of sovereignty, and not the sovereignty itself. Even the legislature is a mere instrument of sovereignty, a servant of the sovereign, and not the sovereign itself; and certainly the people in their sovereign capacity have the power to authorize the sale of intoxicating liquors, or to regulate the same, or to prohibit the same, as they may ■choose; and they have the power to delegate this power to municipal corporations if they should choose to do so. In this state, however, they have wholly withheld such power from municipal corporations. In this state, by the constitution and through the acts of the legislature, the people have utterly prohibited the sale and manufacture of all intoxicating liquors, except for certain purposes; and have utterly withheld from all cities all power to license or authorize the sale of such liquors, for any and every purpose. The only question then for us to consider in this case is, whether the city of Topeka has attempted to authorize or license the sale of intoxicating liquors. This question is principally a question of fact; and while from the evidence introduced on the trial of the case the real facts seem to be obscured and the solution of the question thereby made difficult, yet we think the evidence will require an answer to be given in the affirmative. A few of the leading facts, as deduced from the evidence, are as follows: On June 15,1881, an ordinance- was passed by the city council of the city of Topeka, and on June 16, 1881, the ordinance was approved by the mayor, which ordinance contains among other provisions the following, to wit: “ 20. Persons dealing in soda water, seltzer water, German mineral water, and other drinks, shall pay for each and every place where such drinks are sold six hundred dollars per annum: Provided, -That this shall not apply to peanut venders, confectioners, or drug stores.” Under another provision of this ordinance, the person desiring a license to deal in “soda water, seltzer water, German mineral water, or other drinks,” was required to pay only one-sixth of the annual license tax at any one time. From the passage of this ordinance up to about September 18,1882, the sum of $22,000, in round numbers, was collected from the saloon keepers who sold intoxicating liquors in violation of law, and no sum was collected under the above-quoted provision from any other person or class of persons. On September 18,1882, the mayor issued a proclamation, ordering that all saloons where intoxicating liquors were sold in violation of law should be closed from and after October 1, 1882; and on September 19, 1882, he made a report to the city council, in which report he used the following, among other language: “In view of the fact that on the first day of October next we will be deprived of a large revenue from licenses issued to dealers in soda water, etc., it becomes your duty to provide without delay an equivalent income from some source. “The city has received, in round numbers, some twenty-two thousand dollars ($22,000) within the fifteen months from such licenses. This must be replaced largely in some way, probably by an occupation tax, and the proper committees should be directed to immediately prepare an ordinance looking to that end. You should also direct the city attorney to draft an ordinance providing penalties for violations of what is popularly known as the f temperance law/ so as to bring this class of cases properly within the jurisdiction of the authorities of the city.” On September 26, 1882, an ordinance was passed by the city council, and on the same day approved by the mayor, which ordinance, in substance, prohibited the sale of intoxicating liquors, and fixed fines and penalties for any violation thereof as follows: A fine of not less than $100 nor more than $500 for each violation, or a fine of not less than $10 nor more than $50 and imprisonment in the city prison not less than fifteen days nor more than three months, for each violation. The saloons were closed about October 1, 1882, and remained closed until sometime in November, when they were again opened. And from that time forward there was no honest attempt made on the part of the city authorities to again close them, or to enforce obedience to the ordinance. The whole object of the city authorities from that time forward up to the time when this action was commenced, which was June 26, 1883, seems to have been to permit the saloons to remain open, and to obtain a revenue therefrom. During that time there were over thirty saloons in existence, and in all probability the aggregate violations of the city ordinance by the keepers of these saloons and their assistants amounted daily to hundreds, and possibly to thousands, and amounted during the year to hundreds of thousands, and possibly to millions; and yet only one prosecution for each saloon was usually had during each two months, (six prosecutions during the year,) and this prosecution was not in good faith, but was merely a simulated prosecution. Twenty-two thousand dollars would probably be the price of about two hundred thousand drinks; and to justify the payment of twenty-two thousand dollars would probably require the sale of hundreds of thousands, and possibly millions of drinks; and yet in all there were only a few prosecutions, and they were merely simulated prosecutions, as before stated. These supposed prosecutions were usually conducted in the following manner: The city marshal would usually, about every two months, give notice to each saloon keeper that his fine, or assessment, or tax, or whatever it may be called, was due and must be paid. The saloon keeper would then, as a general rule, appear before the police judge and plead guilty to a violation of the city ordinance, and the police judge would then fine him $100,. and he would pay the same and be discharged. The fine was invariably $100, and no imprisonment was ordered, except as a means of enforcing the payment- of the fine. In many cases, however, the saloon keeper would not appear before the police judge at all, but would simply hand the $100 to the city marshal and the city marshal would then report the same to the police judge, and the police judge would order that the amount be forfeited to the city; and that was conT sidered as ending the case. It was then considered that the saloon keeper was free to. carry on his business again for another two months without further molestation or disturbance. The entire action of the city authorities seemed to be to obtain revenue, and not to enforce the city ordinance, and not to close the saloons. The saloon keepers seem to have paid promptly. Probably $100 every two months was only a small proportion of each saloon keeper’s profits, and he could well afford to pay that amount. And even if each saloon keeper committed one hundred violations of the city ordinance each day, or a thousand or a hundred thousand during the two months, yet if he kept what the city authorities considered to be a reputable saloon, he was not to be prosecuted except once about every two months, and then only for one violation of the city ordinance; and he was then to be fined only $100, and no imprisonment was to be imposed upon him as a punishment, and if he paid the $100 to the city marshal when notice was given to him he was not even to be fined; for money was all that the city authorities seemed to want. There was still other evidence tending to show that the only object of the city authorities was to obtain revenue, and not to enforce the city ordinance, .and not to prevent the illegal sale of intoxicating liquors; and that for the purpose of obtaining revenue, they virtually authorized and licensed the sale of intoxicating liquors; but we hardly think it necessary to set it forth or to further discuss the case upon the evidence, and for the reason, among others, that at the present time the. only real question to be settled between the parties is a question as to which of the parties shall pay the costs, and the main question is in no other sense a question upon the merits. There is no claim how that the city is attempting to license or authorize the sale of intoxicating liquors, or even that it connives at any such sale, but the only claim now made on the part of the plaintiff is, that the city was doing these unwarrantable things at the time when this action was commenced, and therefore that the ordinary judgment of ouster should be rendered against it, and that it should be required to pay the costs of this suit. We have probably already said more than was necessary to say under the circumstances of this case. Probably, however, before closing, we should still set forth, by way of explanation, one or two other facts. The city has not by any written or printed license or permit authorized the sale of any intoxicating liquor, but we think it has just as effectually done so by the action of its officers as though the license or permit had been completely in writing, and authorized by an express provision of a city ordinance. No circuity of action, no indirection or evasion, can possibly excuse the city, or render its illegal and wrongful acts harmless and innocent; and no amount of shifts or subterfuges can ward off the merited consequences of wrong-doing. Courts look to the substance and essence of things, their real natures and characters, and not merely to forms. And looking at the present case in this manner, we think the city, through its officers, has culpably violated the law by usurping privileges and franchises not only not given to it, but expressly withheld' from it, and absolutely prohibited. No city has a right to seek revenue or other benefit by the encouragement of illicit business. Indeed, no city has a right to go beyond, its own granted powers to encourage even a lawful business. In the present case, the city of Topeka has not only gone beyond its own granted powers to encourage a business, but it has gone beyond its own granted powers to encourage an illegal business. It is also the duty of all officers, city officers as well as others, to support the constitution of the state and to obey the laws, and especially all the laws pertaining to the duties of their own respective offices. Their oath of office requires this. (Comp. Laws of 1879, ch. 72, § 6.) Each officer is required to take an oath to support the constitution of the state, and to faithfully discharge the duties of his office; and to give aid or encouragement to the operation of intoxicating liquor saloons, is certainly -not supporting either the constitution or the statutes, or at least those'portions of the constitution and the statutes which prohibit the sale of intoxicating liquors. Judgment will be rendered in favor of the plaintiff and against the defendant, as prayed for in the plaintiff’s petition. All the Justices concurring. Tjbce decisions and statutes referred to are embodied in tbe following quotation from the brief above mentioned: “The constitution of Kansas was modeled upon that of Ohio; and there, ever since 1838, quo warranto has been the remedy ‘when any corporation exercised powers not conferred by law,’ to oust it from the exercise of those powers. (2 Swan & Critchf. St., p. 1265; Swan’s St. 1854, p. 784; 11 Ohio, 8-96. See also The State v. Cincinnati, 20 Ohio St. 18; The State v. Cincinnati, 23 id. 445.) When our constitution was adopted, this same provision had been in force in Pennsylvania since 1837, (Purdon’s Dig. 832;) in Wisconsin since 1858, (Rev. St. 1858, p. 917;) in New York since 1849, (L. 1849, p.699;) in Michigan since 1846, (2 Comp. L. 1871, p. 1962; see p. 1960 for date;) in Massachusetts since 1852, (Gen. St. 1860, p. 744; date in margin, §16;) in Indiana since 1852, <2 G. & H. St., p. 323; see p. 33 for date;) in Iowa since 1851, (Code of Iowa, 1851, p. 298;) and it is now in force in almost every state in the Union. See also 25 Conn. 36; 45 Mo. 20; 95 Ill. 578; 47 Conn. 602; 11 Ohio, 97; 5 Ohio St. 217; 47 Pa. St. 468; 45 Md, 379; 21 Ill. 69; 13 Pet. 595; 5 Wend. 217; 15 Johns. 387; 15 N.T. 170; 27 id. 619; 8 Mod. 114.”	[ -80, -18, -12, 28, 30, -32, 0, -67, 80, -77, -9, 115, -23, -38, 5, 123, -6, 93, 20, 123, -31, -74, 7, -56, -106, -5, -37, -43, -79, 107, -26, -12, 76, 48, 74, -43, -26, -55, -63, 88, -114, 4, -119, -56, -48, -119, 52, 123, 115, 10, 81, 15, -13, 42, 25, -61, -87, 44, 91, -115, 121, -8, -104, -107, 92, 86, 17, 32, -108, -123, -56, 47, -104, 57, 9, -24, 115, -92, -122, 116, 15, -119, 13, 102, 99, 33, 21, -17, -20, -84, 15, 91, -99, -90, -80, 89, 99, -120, -106, -99, 124, 18, 7, -2, -29, 21, -33, 124, 13, -114, -74, -77, -113, 49, -126, 87, -17, -90, 32, 117, -43, 124, 92, 101, 48, 27, -113, 20 ]
The opinion of the court was delivered by Hokton, C. J.: From the agreed statement of facts it appears, among other things, that in 1864 the county seat of Butler county was located at El Dorado by a vote of the electors of that county, and has been continuously there ever since — over nineteen years; that county buildings have been erected at the county seat at a cost to the county of $10,000, without submitting the same to a vote of the electors of Butler county; that on the 10th day of April, 1883, there was presented to the defendants, as the board of county commissioners of that county, a petition purporting to be signed by 2,194 legal electors of the county, asking that an election be called for the relocation of the county seat; that at the same time there was presented a counter-petition signed by 2,781 legal electors of the county, asking that no such election be called; that by the assessment rolls and personal-property statements for 1882 the number of legal electors of the county was 4,252; that this action was commenced on the 3d day of May, 1883; and that the defendants declined to call the election as prayed for in the petition presented to them. It is claimed in the case on the part of the relator, that ch. 91, Laws of 1883, does not apply, for two reasons: First, As the petition was filed in the clerk’s office of Butler county on April 2, 1883, before the act of 1883 had been published or taken effect, that it was a “proceeding commenced” under the law in force at the time it was filed, and should have been completed under that law. Although the petition was filed April 2,1883, it was not presented until April 10,1883, and ch. 91, Laws of 1883, took effect on April 5, 1883. Even if the filing of the petition on April 2, 1883, was the commencement of the “proceeding,” the theory of counsel for the relator is disposed of by the decision of this court in the case of Gordon v. The State, 4 Kas. 489. The reasoning of that decision has never been satisfactory to the writer; nevertheless, it is the opinion of the majority of the members of this court that it should be followed. This decision was rendered in 1868. Since that time it has been unchallenged, and the legislature has given sanction thereto by failing to enact any law changing the rule therein announced. Second, It is urged that the law of 1883 is null and void, (1) because its provisions require more than a majority of the voters to carry .the proposition; (2) because it is illegal, meaningless, and void, as it does not change or repeal § 6, ch. 26, General Statutes of 1868. It is unnecessary to discuss these various objections. It is clearly within the power of the legislature to require more than a majority of the electors to petition before an election shall be called for the relocation of a county seat, and to define who are to be considered legal petitioners. The law of 1879 required in a case like the one presented a petition of a majority of the legal voters only. The law of 1883 requires in such a case a petition of two-thirds of the legal electors. In this respect, whatever may be said of the other objections taken, the act is constitutional. It was in full force at the time the petition was presented to the defendants for their action. The act of 1883 declares no petitioner shall be deemed a legal elector unless he be an elector, and his name appear on the last assessment rolls of the several township and city assessors of the county. The assessment rolls of Butler county for the year 1882 showed the number of electors of the county to be 4,252. The petition was signed by 2,194 electors only. This was not two-thirds of the legal electors of the county; therefore the peremptory mandamus must be refused.	[ -15, -26, -15, 56, 90, 64, 4, -72, 106, -93, -27, 95, -23, -101, 17, 121, 27, 111, -47, 121, -60, -93, 82, -29, 18, -13, -117, -35, -73, -116, -10, -59, 78, 40, 90, -43, 70, 66, -49, 92, -114, -92, -53, -64, -56, -120, 52, 120, 50, 15, 85, -85, -11, 34, 93, -45, 105, 45, -37, 61, 17, -7, -38, -123, 79, 6, 49, 102, -120, -125, -56, 62, -112, 53, 18, -8, 83, -90, -122, 118, 69, -87, 44, 56, 38, 65, 108, -17, -88, -103, 14, -5, 1, -89, -106, 25, -22, 9, -106, -99, 125, 86, 67, 118, -25, 5, 25, 126, -116, -114, -84, -73, 15, 97, -117, 65, -29, 37, 16, 113, -63, -46, 87, -57, 50, -69, -81, 120 ]
The opinion of the court was delivered by Valentine, J.: This action was commenced by William F. Osborn against J. E. Woodford and A. L. Woodford, partners doing business under the firm-name and style of Woodford Brothers, and F. C. Jones and N. S. Werts, to recover damages alleged to have been sustained on account of the breaking of a plate-glass window in a building belonging to the plaintiff, which breaking the plaintiff alleged was caused by the negligence of the defendants in doing the work and in using defective machinery in moving a certain building owned by the Woodford Brothers. The plaintiff also’ claims that the work of itself was of such a dangerous character that the defendants were liable, regardless of the question of negligence. The plaintiff also alleged that Jones and Werts were the employés and special partners of Woodford Brothers in moving this building. The Woodford Brothers answered, admitting the ownership of the building, and that they were partners, but denying that they were partners of Jones and Werts, or of either of them, either generally or specially, and denying all the allegations of the plaintiff’s petition, except such as they admitted. This answer, so far as it denied the allegations of partnership, was verified by affidavit. Jones and Werts also filed an answer, denying generally all the allegations of the plaintiff’s petition. A trial was had before the court and a jury, which trial resulted in a verdict and judgment in favor of the defendants and against the plaintiff; and the plaintiff, as plaintiff in error, brings the case to this court for review. The first ruling of the court below assigned as error is the admission of certain evidence to prove that the Woodford Brothers let the contract to move their building to Jones and Werts, who thereafter had entire charge and control of the work of removal, and that they, the Woodford Brothers, had nothing to do with the work of removal, nor any control over the same. The plaintiff claims that such evidence was inadmissible under the defendants’ general denial; and this is the only ground upon which he claims that the evidence was not admissible. He claims that the defendants should have set forth this fact in their answer, if they wished to prove it. We think the evidence was admissible, and that the court below did not err in admitting it. It was merely evidence that tended to disprove or rebut the plaintiff’s ease, the plaintiff’s cause of action, the allegations of negligence, etc. But still, it was immaterial under the verdict of the jury, for the jury found that even Jones and Werts, the persons immediately connected with the injury, and who caused the same, were not liable. The plaintiff also claims that the court below erred in admitting the testimony of A. C. Majors, as to the degree of care and skill subsequently exercised by Jones in moving another building. We think the court below erred in admitting this evidence, but we also think that the error was immaterial. Besides, the plaintiff did not save a proper exception. The evidence was probably introduced for the purpose of showing that Jones was a careful and skillful workman; but it certainly did not show him in any better light in that respect than the other evidence did. Indeed, it showed him in a much worse light. The objection and exception to the introduction of this evidence, as shown by the record, are as follows: “ To all of the above testimony of the witness Majors, the plaintiff duly objected, and, the objection being overruled, duly excepted.” It does not appear that any reason was given for the objection or the exception; and generally in such cases, a court does not err materially, unless a reason is given by the party asking for the exclusion of the evidence. The evidence may have been introduced to show that Jones was skillful and careful, or that the machinery was sufficient, or that moving buildings is not necessarily dangerous, or for still some other reason; but for whatever purpose it may have been introduced, we do not think it could have prejudiced the substantial rights of the plaintiff. The plaintiff also claims that the court below erred in giving to the jury the instructions numbered 7, 8, 8J-, 9,11, 13, and 15. He claims that by these instructions “the jury were instructed in effect that to enable the plaintiff to recover they must find that the work done from which the damage resulted must be in itself dangerous, and likely to produce injury, however carefully done, or that there must be a want of ordinary care in its performance.” The portion of this instruction of which the plaintiff complains, we have put in italics. Two of the instructions given are in substance nearly as claimed by the plaintiff; perhaps, however, not quite so objectionable, but still possibly open to some slight criticism. We think, however, under the circumstance^ of this case, that the objectionable portions of the instructions were wholly immaterial; for there was nothing in the case that showed that the removal of the building required anything more than ordinary care in its removal. The two buildings were situated on opposite sides of the same street, and nearly opposite to each other. The width of the street is not shown, but presumably it was wide enough to permit the Woodford Brothers’ building to be removed without danger to Osborn’s building. But if it was not, the burden of proving that it was not, rested upon the plaintiff. The Woodford Brothers’ building was to be removed to some point not shown by the evidence. And here again the burden of proof as against the Woodford Brothers rested upon the plaintiff. There was no evidence tending to show that the mere removal of the building, if properly done, would have placed Osborn’s building in danger. The Woodford Brothers’ building was moved by Jones and Werts into the street, and nearly opposite Osborn’s building. One of the chains which Jones and Werts used in moving the building was old and much worn, and was not sufficient for the purpose for which it was used, and while they were using it a link was broken, and was thrown with great force through the plate-glass window of Osborn’s building, and by this means the injury was done of which the plaintiff, Osborn, now complains. If a proper chain had been used, evidently no injury or loss would have occurred. We think, by the exercise of ordinary care and diligence on the part of Jones and Werts, no injury would have occurred, and Osborn would not have sustained any loss; hence we think that the objectionable portion of the instructions complained of is wholly immaterial, under the circumstances of this case. As before stated, the removal of the building was not of itself dangerous, nor likely to produce the injury complained of to Osborn’s building. In our opinion, however, the jury erred in not finding in favor of the plaintiff and against Jones and Werts; for we think they were guilty of negligence in not using a better chain. But that is a pure question of fact, which has been settled by the trial court and jury, and we cannot now reverse their decision upon it. And we are not asked to reverse such decision. We are not asked to reverse the judgment of the court below upon the facts, but are asked to reverse it only because of the foregoing alleged errors in admitting certain evidence and in giving the foregoing instructions. Therefore, while we think the verdict of the jury is erroneous, as between the plaintiff and Jones and Werts, yet we cannot rectify it. As between the plaintiff and the Woodford Brothers, we think the verdict of the jury is right. It is probable that if the Woodford Brothers had not been included in the action, or if such a persistent effort had not been made to obtain a verdict and judgment against them, the jury would have found a verdict against Jones and Werts. The jury probably became bewildered and confused by the persistent effort made to obtain a verdict against persons who were not liable. Failing to perceive any material error of the trial court affecting prejudicially the substantial rights of the plaintiff, the judgment of the court below will affirmed. All the Justices concurring.	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The opinion of the court was delivered by Fontron, J.: This is an appeal by the defendant, James J. Hale, from a conviction on charges of first-degree kidnaping, first-degree robbery and grand larceny. The points raised on appeal relate primarily to the sufficiency of the evidence and the correctness of instructions. Sentences of life imprisonment were imposed on each of the three counts, all to run concurrently. Throughout this opinion the appellant will be referred to as the defendant, or Hale, and the appellee as the state. Because of the issues presented in this appeal, we are compelled to relate the facts in some detail. The victim was an elderly gentleman by the name of Claude E. Thrush who was employed as a part-time watchman for a Wichita concern. He also spent some of his time assisting his daughter, Alfreda, in the operation of her tavern which was known as Angel’s Lucky Seven. On Monday evening, May 5, 1969, Alfreda had gone home early, leaving her father to look after the tavern and to lock up when it came time to close. On the same evening the defendant, often referred to in the record as Junior, and his brother Eugene, or Gene, betook themselves to Angel’s Lucky Seven — after having first attempted to borrow money from an employee of a nearby plant. After they arrived at the tavern the brothers began to cadge money with which to buy drinks. About closing time Gene kept falling asleep on the bar and the defendant then asked Mr. Thrush if he would take them home. The Lucky Seven was closed shortly after midnight. From the cash register, Mr. Thrush removed all the weekend receipts, which included a number of ten and twenty dollar bills, and placed them in a money sack. He took the receipts with him and was last seen alive getting into his Rambler station wagon, in which the defendant was then sitting in the front passenger seat and Gene was occupying the seat behind. The evidence showed it was the invariable custom of Mr. Thrush, upon leaving the tavern, to go directly home, a matter of only a few blocks. However, this evening his pattern was broken, and he never made it home. Neither did he deliver the Hale brothers to their place of abode, a couple of blocks from his own. About 12:30 a. m., May 6, 1969, the Thrush car was seen proceeding slowly north on Arkansas to 53d Street, many blocks north of where either Thrush or the Hales lived. At 53d the car turned west. Three men occupied the car at that time, two in the front seat and one in the back. The Hales, both Junior and Gene, next turned up in Thrush’s station wagon between 1:00 and 1:30 a. m. at a Knights of Columbus Hall at Andale, Kansas, a small community in Sedgwick County some twenty miles west of Wichita. At this time Thrush was not in his car. The brothers asked to use the restroom and inquired where they might purchase some gas. About 2:25 a. m. the defendant appeared at a farm house, in rural Sedgwick County where he purchased some gasoline for the car from a farm woman. He paid for it with two one-dollar bills. At approximately 4:30 a. m. the Hale brothers arrived on foot at a truckstop restaurant at the junction of U. S. 54 West and the Cheney road, where they ordered breakfast. They said they had been fishing, that they had broken an axle on their car and they wanted to get to the city for parts. While waiting for breakfast to be prepared they played the music machine, to the tune of about three dollars, and one of them made a long distance call to Seattle. After paying for their breakfast with a five-dollar bill, one of the Hales offered to buy the owner a steak breakfast, but his offer was declined. They also offered to pay him for taking them to Wichita. A farmer who lived near Cheney picked the Hales up near the truck stop and took them into Wichita where he let them out near a bus stop. They told their benefactor they had been fishing, had broken an axle on their dad’s truck and wanted to catch a bus to get some parts. As they got out of the car a gold Masonic ring, later identified as belonging to Thrush, rolled out from underneath the passenger seat. The defendant claimed the ring as being his. We next find the brothers being transported by taxi to the Knotty Pine Inn. This was between 8:00 and 8:30. They told the driver they had been driving a truck which broke down and they wanted to be near a highway so they could hitchhike to Holly, Colorado, to get repairs. The two men spent considerable time in the West Street Bar, next to the Knotty Pine, where they engaged in buying beers for themselves and two of their cronies, one having the name of Heavy. They paid for the drinks with ten and twenty dollar bills. Later that morning all four drove to Salina in Heavy’s car, where they continued their drinking spree to the point of intoxication. A Salina taxi driver testified the Hales had several five-dollar bills. Eventually the defendant passed out. When arrested by Salina police that evening he had more than fourteen dollars on his person. The body of Mr. Thrush was found early in the morning after his disappearance. It was in a ditch some twelve miles west of his home. His ring, his watch, his car and the tavern receipts were missing. According to medical testimony the cause of his death was acute heart failure. The body appeared to have been dragged from the car into the ditch. An examination of the body disclosed a laceration on the ring finger and an injury to the face above the right eyebrow. There was medical evidence that the facial injury was ante-mortem in its origin and had occurred very shortly prior to death. This medical opinion was based on the evidence of swelling and bleeding beneath the skin which indicated that there was circulation going on at the time of the injury. In addition to what we have already related, there was evidence that the defendant’s boots matched the heel impressions found at the scene where the body of the deceased was found. Dirt samples taken from the boots were compared with earth taken from the scene and were found to have sufficient similar characteristics to have come from the same area. Fingerprints lifted from the Rambler were very similar to those of the defendant, although positive identification could not be made because of the quality of the prints. Three medical witnesses were called by the defendant and testified the deceased had died a natural death from heart failure. Hale.himself did not testify. The defendant’s first item of complaint is that the verdicts are not supported by substantial competent evidence. We are of the opinion this contention cannot be sustained. Although it may be true that direct evidence of guilt is lacking, there is a damning chain of circumstantial evidence extending from the time Mr. Thrush left Angel’s Lucky Seven Tavern to the time this defendant was arrested in Salina. It is well established that a conviction, even of the gravest offense, may be sustained by circumstantial evidence. (State v. Kennedy, 124 Kan. 119, 257 Pac. 726.) This court has even said that inferences drawn from admitted or well authenticated facts may be stronger and more convincing than the testimony of witnesses who, albeit unwittingly, may not have been telling the truth. (State v. Evans, 115 Kan. 538, 541, 224 Pac. 492.) This declaration accords with the concept, generally held, that circumstantial evidence may be more trustworthy than eyeball testimony. (30 Am. Jur. 2d Evidence, § 1091, pp. 249, 250.) The defendant argues that evidence was lacking to establish first-degree robbery because there was no showing that Mr. Thrush was alive when relieved of his money, car and other valuables. His argument continues with the assertion that a dead man cannot be placed in fear and, hence, there can be no robbery of a corpse. An analogous contention is advanced with respect to the charge of first-degree kidnaping, an offense which requires either that the abduction be carried out for the purpose of obtaining ransom or that personal harm be inflicted upon the victim. The defendant maintains that since it was impossible to say that Mr. Thrush received any injury before his death, his abduction, if any there was, could not be said to constitute kidnaping in the first degree. If the facts were as the defendant claims them to be, the prosecution might find itself in a quandary. However, the state is not impaled on the horns of any such dilemma. The premise on which Hale bases his argument is false. There is substantial medical evidence, which we have heretofore pointed out, from which the jury might reasonably conclude that Mr. Thrush was alive when his property was taken from him and that he sustained personal injury at that very time. When considering, on appeal, the sufficiency of circumstantial evidence to sustain a conviction of a crime, the function of this court is limited to ascertaining whether there was a basis in the evidence for a reasonable inference of guilt. (State v. Brizendine, 114 Kan. 699, 220 Pac. 174; State v. Murphy, 145 Kan. 242, 65 P. 2d 342; State v. Gregory, 191 Kan. 687, 691, 383 P. 2d 965.) We are compelled to conclude that this test has been met successfully in the case before us. The circustances have already been related and require no repetition. They weave an incriminating and enveloping net, not the weakest part of which is the defendant’s sudden and unexplained rise to affluence from his previous penury. (State v. Jones, 202 Kan. 31, 45, 446 P. 2d 851.) We proceed to the instructions. Hale’s first complaint is directed against the instruction pertaining to circumstantial evidence. The instruction omits language frequently found in circumstantial evidence cases to the effect that the circumstances must exclude every reasonable hypothesis except that of guilt. (Horne v. State, 1 Kan. 42.) This court has said that the jury must be so instructed. (State v. Bonomo, 173 Kan. 675, 250 P. 2d 833.) However, convictions based on circumstantial evidence have also been sustained where that exact language was not employed, but where, in lieu thereof, instructions were given which basically stated the rule. (State v. Pack, 106 Kan. 188, 186 Pac. 742; State v. Adams, 20 Kan. 311.) We view the instruction submitted in this case as falling within that category. The trial court is said to have erred in giving the standard instruction on the unexplained possession of recently stolen property. It is alleged the circumstances of this case did not warrant such instruction. There is no merit in this contention. The defendant and his brother were identified as being in sole possession of the Thrush station wagon at Andale, at which time its owner was nowhere to be seen. A short time later the defendant purchased gas for the car. The car, itself, was found wrecked near Cheney, many miles from the Thrush home, about the same time that its owner was found dead in a ditch between Wichita and Andale, with his Masonic ring and money missing — along with the car. His ring turned up in Hale’s possession a few hours later. Two additional claims of error require mention. The defendant asserts the court erred to his prejudice in submitting the charge of first-degree murder to the jury. He points out that in the separate trial of Eugene, held subsequent to his own, the trial court struck the murder charge from the information and withdrew it from the jury. The evidence introduced in the state’s case against Gene, who was Junior’s co-defendant, is not before us and we are in no position to appraise its sufficiency. Nor is it important here whether the charge of murder against Gene was correctly or incorrectly withdrawn. The instant case is to be judged on its own facts. The first-degree murder charged by the state in this case was that of felony murder. The state contended that Mr. Thrush was killed while a robbery was being perpetrated, and there was evidence to support that theory. Even though his death was ascribed to an acute heart attack, there was medical testimony that the deceased had sustained personal injury prior to death and that death itself might have been precipitated by emotional stress or excitement. In our opinion there was sufficient evidence to justify submitting the murder charge to the jury. Furthermore, since the jury returned a verdict of not guilty as to this count, we are at a loss to understand how the defendant was prejudiced. It is finally alleged that the trial court erred in refusing to permit cross-examination of a prosecution witness as to a statement allegedly made by Gene. The incident arose in this way. A Sedgwick County officer, Johnnie Darr by name, testified, without objection, that as part of the booking procedure, Gene gave his address as being 3008 North Arkansas. On cross-examination defense counsel sought to question Darr concerning a statement Gene had given concerning other matters. The record is not clear whether this statement was made at the time he was booked, or subsequently, The court ruled that Darr could not be cross-examined on Gene’s alleged statement, which was to the effect (as shown in Hale’s brief) that Thrush was dead when larceny was committed. We believe the court was correct in its ruling. The statement was not only self serving on the part of the declarant but was purely hearsay, so far as the state and the defendant were concerned. K. S. A. 60-460 provides that evidence of a statement, other than by a witness while testifying, which is offered to prove the truth of the matter stated is hearsay and inadmissible, with certain exceptions not relevant here. Gene refused to testify at the trial on the ground that his testimony might tend to incriminate him. Such was his constitutional right. Hence he would not have been available for cross-examination by the state, and the exception set forth in 60-460 (a) was not applicable. The defendant suggests that the attempted cross-examination of Mr. Darr was permissible on the theory that the state, on direct examination, had opened up the subject. We think otherwise. Darr’s testimony went no further than this: While being booked at the county jail, Gene had given his address. As to this statement, Darr might be cross-examined — but not as to others. It is widely held that cross-examination must be responsive to the matters gone into on direct examination. (State v. Roth, 200 Kan. 677, 681, 438 P. 2d 58.) Any cross-examination of Mr. Darr as to self serving declarations on Gene’s part would clearly be impermissible as extending beyond the scope of the direct examination. Cross-examination is not proper when it exceeds the bounds of the direct examination and seeks to set up matters of defense. (In re Estate of Snyder, 188 Kan. 46, 50, 360 P. 2d 883. We find no prejudicial error in the trial court’s judgment and the same is affirmed.	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The opinion of the court was delivered by Fatzer, J.: This was a criminal action which resulted in the conviction of the appellant of robbery in the first degree (K. S. A 21-527), and a sentence of not less than ten nor more than twenty-one years. (K. S. A. 21-530.) On October 30, 1969, Brewer’s Market, a grocery store in Bonner Springs, Kansas, was robbed of $1600. At 7:45 p. m. on that date, the appellant, his brother, and one Delbert Taylor entered the store. The appellant proceeded to take money at gun point from two clerks at check stands while his brother and Taylor robbed the store manager in the office. While the robbery was in progress, the assistant chief of police drove into the parking lot of Brewer’s Market on a routine check. He was alerted by a hand signal from the doorway of the store by one of the clerks. As the appellant and his companions fled the store in a 1960 white station wagon, they were pursued and stopped by the assistant chief of police. The Nelson brothers were removed from the car, but before Taylor could be removed he sped off in the station wagon, firing shots, and wounding a policeman. Taylor was subsequently arrested and pled guilty to the crime. After his arrest, the appellant retained counsel, but later asked the district court to appoint counsel previously retained for the reason he had no more funds to continue to pay an attorney. The appellant complains of several errors in the trial, the first being the verdict of the jury was contrary to the evidence, and as a matter of law, his guilt was not proved beyond a reasonable doubt. He attempts to support his contention by demonstrating the opposing views of witnesses at the trial. The state presented four eyewitnesses who positively identified the appellant as one of the participants in the robbery. Opposing that evidence was the appellant’s testimony, that of his mother, and an accomplice, to the effect he was not present and did not plan or participate in the crime. The appellant argues that because of such conflict of testimony, the state failed to sustain its burden of proof of his guilt beyond a reasonable doubt. At least two victims who were employees and in the store at the time of the robbery, identified the appellant as a perpetrator of the crime. One employee was at a check-out stand and the appellant demanded at gun point money from the witness. The appellant wore no mask, and was about eye level with the witness who observed him at least two minutes. Another checker identified the appellant as one who had a gun and demanded money. Both witnesses put the money from their cash registers into a paper sack and handed it to the appellant. Another witness, a former assessor who called at the Nelson home for assessment purposes when the family lived in Bonner Springs, knew the children. She also testified she was supervisor of the Summer Recreation Center at Bonner Springs and that the appellant and his brothers came to the Center and played basketball all summer long. Further, that on the evening of the robbery she went to Brewer’s Market for groceries and parked beside a light colored station wagon. She observed men in the car, but did not pay any particular attention to who they were; that as she came out of the store to go to her car, she saw the two Nelson boys, the appellant and his brother, and another boy going into the grocery store. She positively identified the appellant in the courtroom as one of the Nelson boys she saw going into the store. While the appellant attempts to show he was not a participant in the robbery, conflicts in evidence are to be resolved by the jury. In State v. Satterfield, 202 Kan. 391, 449 P. 2d 564, it was said: . . it has been repeatedly stated that in criminal prosecution it is first the function of the jury and then that of the trial court after verdict to determine what facts are established by the evidence. Before a verdict, which has been approved by the trial court, may be set aside on appeal on the ground of insufficiency of evidence it must be made to clearly appear that upon no hypothesis whatever, is there sufficient substantial evidence to support the conclusion reached in the trial court . . .” (l. c. 393, 394). A reasonable doubt of guilt does not exist merely because of inconsistent and opposing evidence. If the jury believes the evidence presented by eyewitnesses, reasonable doubt does not necessarily exist though there be some evidence to the contrary. In the instant case, the testimony of the appellant and his witnesses that he could not have been present at Brewer s Market at the time of the robbery, was refuted by the positive identification of four eyewitnesses. The conflict in the evidence was resolved by the jury, and there was ample evidence to support the verdict of guilty. The appellant next complains the district court erred in not allowing an addition after the first sentence, and before the last sentence, of Instruction No. 9 to the effect the jury be instructed that the “[testimony offered by the state tending to prove his identification as such person is to be scrutinized by the jury very carefully.” The contention is advanced because the appellant’s defense revolved around his claim he was not present and did not participate in the robbery. Instruction No. 9 reads: “The defendant denies that he was the person who took the money from Judy Connell and Robert Thompson or that he had anything to do with the robbery in this case. The burden of proof is upon the State to prove the identity of the defendant as one of the persons who committed the crime charged here with that degree of moral certainty that amounts to proof beyond a reasonable doubt.” In explaining the term “reasonable doubt” in Instruction No. 3, the district court cautioned the jury the term did not mean a mere possible or imaginary doubt, but was such doubt as the jurors are able to give a reason for and which would cause a reasonably prudent and considerate person in the graver and more important affairs of life, to pause and hesitate before acting upon the truth of the matters alleged, and was such a state of mind which, after a careful comparison and consideration of all the evidence, leaves the minds of the jurors in such condition that they cannot say they feel an abiding conviction of a moral certainty of the guilt of the defendant. The jury was also informed it must fairly, and without bias or prejudice, consider and discuss the evidence in the case, viewing the same from all angles as presented by both the state and the defendent. In State v. Trotter, 203 Kan. 31, 453 P. 2d 93, it was held: “The adequacy of instructions is determined by their being considered as a whole, each in conjunction with all other instructions in the case.” (Syl. ¶ 8.) Considering the instructions as a whole, there is nothing approaching prejudicial error, and the district court did not err in refusing to include the requested sentence to Instruction No. 9. The appellant next complains prejudice on the basis of a remark made by the county attorney in the presence of the jury. During the examination of the arresting officer by the state, reference was made to one of the accomplices. The error complained of is best shown by the record: “Q. (By Mr. Koehler) You have referred to Daniel Nelson, would you turn around and look at this rogues gallery— “Mr. Chambers: If the Court please, I think that is without the context of this trial. “The Court: The objection is sustained. Let’s be careful about our language here, Mr. Koehler. If you have a question to direct to this witness, do so, but refrain from any such descriptive adjective as you just used. “Q. (By Mr. Koehler) Would you look at the gallery and tell me if you recognize William Daniel Nelson?” The appellant contends his “entire family was slandered and implicated in the mind of the jury, thereby destroying any admirable qualities of the accused and his family.” Whether the remark of the county attorney was sufficient to require the granting of a mis trial depends on whether the statement actually prejudiced the jury. The form of the question was objected to and the district court sustained the objection. The county attorney refrained from asking further objectionable questions. We cannot say the question and the statement as a whole constitute prejudicial error. This was an armed robbery trial where the appellant’s entire family — over 30 people, infants and adults — appeared at the trial every day. They consistently disrupted the trial, either by crying, laughing, arguing, talking, or moving in and out of the courtroom. Upon reception and reading of the verdict, the entire family caused disturbances and committed indignities in the courtroom to such extent the district court was required to order them to leave the courtroom if they could not control themselves, and directed the sheriff to escort them into the corridor. The district court instructed the jury, in Instruction No. 15, that “[r]emarks of counsel made during the trial are not evidence and should not be considered by you as such in arriving at your verdict in this case.” Since the county attorney was asked to rephrase the question, and since he asked no further objectionable questions on the point, we are of the opinion Instruction No. 15 provided a safeguard against possible prejudice, and the court did not err in overruling the appellant’s motion for a mistrial. See State v. Wright, 203 Kan. 54, 56, 453 P. 2d 1, and State v. Miller, 204 Kan. 46, 48, 460 P. 2d 564. The appellant lastly complains the district court erred in appointing counsel to represent him and his co-defendant, in that possible conflicts of interest may have denied him full and fair representation. The point is not well taken. Both the appellant and his brother were represented at the preliminary hearing on December 4, 1969, by the same attorney they had retained. On March 31, 1970, they advised the district court they were without funds to employ counsel, and requested that the attorney they originally retained be appointed to represent them. They also requested separate trials. Before appointing counsel, the district court inquired: “The Court: Let me ask you this, Mr. Chambers — I got in a jam one time appointing the same lawyer to represent two defendants. Is there any possible conflict of interest between these two boys? “Mr. Chambers: If the Court please, I do not believe that there is any conflict between these two defendants. I might advise the Court that these will be separate trials in this matter, but insofar as what the evidence will be and the testimony that I know thus far, I can see no conflict whatsoever. “Mr. Tomasic: Can we extend that to the other Nelson brother? . . . “The Court: It is not a case where they are trying to put off the guilt on one or the other of the defendants? “Mr. Chambers: No, sir. “The Court: You and I both know this happens between co-defendants. “Mr. Chambers: That’s right. “The Court: Do you boys see any reason why you shouldn’t have the same lawyer? “Defendant Ioseph Nelson: No. “Defendant Iames F. Nelson: No. “The Court: Does the State care to be heard in this respect? “Mr. Tomasic: Your Honor, we have no objection to Mr. Chambers being appointed at this time. “The Court: All right. In both cases I find that the defendant is indigent, unable to employ counsel of his own choosing. They apparently both are willing that Mr. Chambers represent them, and have confidence in him. He is willing to accept appointment, so at this time the Court does appoint Mr. Chambers as attorney for both of these men.” The appellant cites and relies upon Glasser v. United States, 315 U. S. 60, 86 L. Ed. 680, 62 S. Ct. 457, and State v. Young, 196 Kan. 63, 410 P. 2d 256. Both cases involved the appointment of counsel to represent co-defendants in the same trial where possible conflicts of interest in defenses could have resulted. In the instant case there is absolutely nothing in the record showing that any conflicts of interest resulted from the appointment of a single counsel. Moreover, the appellant made no objection to the appointment of counsel, but in fact requested that originally retained counsel be appointed to represent him. His contention has no possible merit. K. S. A. 62-1718 provides that on appellate review of criminal prosecutions this court must render judgment without regard to technical errors or irregularities which do not affect the substantial rights of the parties. (State v. Clift, 202 Kan. 512, 449 P. 2d 1006.) We have thoroughly reviewed the record and all contentions advanced by the defendant have been carefully studied. It is sufficient to say the record does not affirmatively disclose that the substantial rights of the defendant were prejudicially affected by any of the rulings of the district court, and, further, that the defendant had a fair and impartial trial of the charges alleged against him. The judgment of the district court is affirmed.	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The opinion of the court was delivered by Harman, C.: Carl A. Kendall was convicted in municipal court in the city of Topeka of driving a motor vehicle without having a valid driver’s license. The offense allegedly occurred January 19, 1968, on River Road in Topeka. Upon appeal to the district court this conviction was sustained and on November 15, 1968, Mr. Kendall was sentenced to pay a fine of $300 and to serve ninety days in jail. Apparently probation has been granted. Mr. Kendall has now appealed to this court and, although represented by counsel in the trial court, has chosen to represent himself here. Appellant, a layman, has disregarded our rules respecting the making of an abstract of the record of the 1968 conviction from which he is appealing in that no facts or evidence are presented respecting the errors he asserts in that judgment. We have only unsupported conclusory argumentation against it. Although we are disposed to waive every possible technicality where a convicted person appeals without benefit of counsel the result of the default here is we have nothing to review. In his brief appellant complains of many occurrences over the past thirty years in which he has been involved, allegedly culminating in his present conviction, commencing with the revocation of his driver’s license in January, 1941, after an automobile collision. These events include three civil suits which reached this court, two previous charges in magistrate court of operating a motor vehicle without a driver’s license, one of which resulted either in a dismissal or an acquittal and the other in a conviction, and two additional civil suits in district court. None of the civil actions had any connection with appellant’s right to operate a motor vehicle. Virtually all the complaints made either involve evidentiary matters of which we have no record or are irrelevant to the 1968 conviction. The only matter of possible substance discernible from examination of the material supplied us is that appellant was wrongfully denied the defense of former jeopardy. , Appellant’s contention apparently is that having been charged in 1954 with the offense of driving without a driver’s license and acquitted, and having been charged and convicted in 1962 of a similar offense, he is not subject to conviction for such an offense committed in 1968. Appellant misapprehends the doctrine of former jeopardy, the touchstone of which is identity of offenses (State v. McCarther, 198 Kan. 48, 51, 422 P. 2d 1012). Here, patently, having occurred at different times, the several offenses were separate and independent, and appellant’s contention with respect to jeopardy has no merit. No error appears in the judgment and it is affirmed. APPROVED BY THE COURT.	[ -16, -22, -16, -66, 27, 64, 34, 28, 81, -41, 54, 83, -85, -53, 4, 105, 123, 109, 84, 43, -19, -73, 87, -119, -30, -13, -37, 85, -77, 89, -28, -27, 78, -80, -118, -43, 38, 72, -59, 28, -50, 6, -71, -48, 88, -120, 52, 107, -94, 15, -111, -97, -61, 58, 26, -62, -87, 44, 75, -68, -64, -80, -101, -97, 79, 80, -93, 4, -104, 5, 124, 40, -100, -71, 0, -4, 114, -90, -126, -12, 47, -103, -116, 102, 98, 33, 29, -19, -20, -119, 46, 112, 13, -90, -100, 80, 65, 1, -106, -99, 115, 118, 9, 124, -10, 20, 29, 124, 11, -117, -80, -111, 77, 116, -126, 56, -17, 97, 17, 113, -50, -10, 92, 71, 90, -101, -106, -74 ]
The opinion of the court was delivered by Price, C. J.: Defendant, Richard Frideaux, appeals from a conviction of the offense of attempting to aid or assist a prisoner being held in the Reno county jail awaiting trial on four felony charges— to escape therefrom — in violation of K. S. A. 21-101 and 21-728. Very briefly — the background of the matter is this. One Charles Holder was being held in jail, along with defendant and others. Defendant was released on bond on December 9, 1969. The next day he delivered to the jailer a paper sack containing a tube of toothpaste and requested that it be given to Holder. Shortly thereafter it was discovered that the tube contained hacksaw blades, and defendant was charged accordingly. A. jury returned a verdict of guilty. Defendant’s motion for a new trial was denied. Having previously been convicted of forcible rape in Scott county, he was sentenced to confinement under applicable statutes — including the habitual criminal act (K. S. A. 21-107a.). This appeal followed. Only three contentions of alleged error are made. Defendant was contending that the tube of toothpaste had been given to him by a “young Mexican with a small tatoo on his forehead” for delivery to Holder; that he did not know the Mexican or his whereabouts, and that he was ignorant of the fact the tube contained the hacksaw blades. As here pertinent, K. S. A. 1970 Supp. 22-4508 provides that a defendant who is financially unable to obtain investigative, expert or other services necessary to an adequate defense may request them in an ex parte application addressed to the court in which the action is pending. After an appropriate inquiry, and upon a finding that such services are necessary and that defendant is financially unable to obtain them, the court shall authorize defendant’s counsel to obtain the services in question at public expense. Defendant long had known that his trial was set for March 18, 1970, but waited until March 2 to file his application for investigative services authorized by the statute. In it he requested that a named private investigator of Hutchinson be appointed and that he should be paid $8.00 per hour and mileage at 12‡ per mile and other necessary expenses in connection with the investigation. The application was heard by the court on March 2 and was denied. The court, after mentioning the delay in filing the application and the indefinite amount of expense involved, commented: “It further appears the witness’ name and address are unknown and he can only be described as a ‘young Mexican with a red tatooed mark on his forehead’. Allegedly, this Mexican handed defendant certain contraband items; and if true, defendant has no assurance said witness, if found, and placed on the witness stand under oath, would not plead the ‘5th amendment’, or if he were given immunity by the State from prosecution would then testify to defendant’s damage.” It is contended that it was error to deny the application. We believe the contention to be without merit. In State v. Taylor, 202 Kan. 202, 447 P. 2d 806, it was held: “The granting or denial of a motion to provide supporting services to counsel for an indigent defendant in a criminal prosecution is a matter within the discretion of the trial court. Its ruling will not be disturbed in the absence of a sliowing that such discretion has been abused to the extent that the defendant’s substantial rights have been prejudiced.” (Syl. 1.) To the same effect is State v. Young, 203 Kan. 296, syl. 1, 454 P. 2d 724. The Taylor case was decided prior to the enactment of the “investigative services” statute (K. S. A. 1970 Supp. 22-4508) and the Young case was decided prior to the effective date of the statute— but under its very terms there must be a finding by the court that the services are necessary. Such a finding necessarily involves the exercise of discretion by the court after consideration of the facts and circumstances of a particular case. While the statute authorizes the expenditure of public funds for the enumerated purposes — it is not to be construed as mandatorily providing them in every case upon application by a defendant — the final decision rests with the court to which the application is made — and a determination as to the necessity for them rests within the sound discretion of the court. On the general subject see the Annotation at 34 ALR 3d 1256. Furthermore, at the trial defendant testified as to the “young Mexican with a small tatoo on his forehead,” and the jury also heard his witnesses — former fellow inmates of the jail — testify as to conversations about means of getting the hacksaw blades to Holder through a woman intermediary. The jury heard the whole story, and it has not been shown that defendant’s substantial rights were in any way prejudiced by the denial of his application for investigative services. His contention as to this point is not sustained. Defendant next complains the trial court erred in refusing to admit in evidence the deposition of one Voreis, an inmate of the county jail at the time the events in question took place. It appears that on January 14, 1970, Voreis gave two statements in “deposition” form — which were entirely contradictory in substance. They were not read by him — nor signed. Prior to defendant’s trial Voreis was removed to California by authorities of that state. The record shows no compliance with the provisions of K. S. A. 60-230 (e)(f) relating to the taking and use of depositions, and no waiver by the state. Further, the record shows no attempt by the defendant to secure the attendance of Voreis at the trial or to comply with the provisions of K. S. A. 60-226 (d) (3). Defendant’s claim of error in this respect is not sustained. Finally, defendant contends it was error to admit in evidence the hacksaw blades because the state had not established a complete chain of their possession under lock and key. This complaint requires but brief mention. It appears that defendant had handed the sack containing the tube of toothpaste to the jailer for delivery to Holder. The jailer placed it on top of a file cabinet in his office where it remained for perhaps an hour or longer. Two jail trusties had access to the office, but the record establishes that neither one handled the sack or its contents. A short time later the jailer and the sheriff discovered a slit in the tube, and the blades. There is no showing whatever that the tube was handled by anyone other than the officers, and there is no substance to defendant’s contention. No complaint is made of the instructions, and there is nothing to indicate defendant did not have a fair trial. No error being shown— the judgment is affirmed.	[ -48, -20, -11, -68, 59, 96, 58, 8, 91, -93, 100, 83, -87, 75, 1, 123, -77, 63, 84, 105, -33, -73, 87, -31, -30, -69, -39, -35, -13, 95, -20, -44, 72, 112, -118, 85, 66, -56, 71, 92, -114, 4, -87, 65, 80, 2, 34, 107, 18, 2, 113, 30, -13, 42, 20, -22, 9, 44, -53, 29, -36, -15, -5, 29, -97, 22, -125, 2, -68, 5, -40, 46, -100, 49, 0, -24, 123, -74, -126, 116, 13, -117, -84, 102, 98, 33, 29, -53, 104, -120, 14, -34, -83, -89, -112, 73, 106, 45, -98, -103, 111, 20, 10, -10, -29, 36, 95, 108, -125, -34, -4, -109, 73, 56, 6, -6, -21, -123, 48, 97, -51, -14, 92, 87, 120, 19, -50, -78 ]
The opinion of the court was delivered by Fromme, J.: This workmen’s compensation proceeding is before the court a second time. The first appeal determined that claimant’s injury arose out of and in the course of his employment. (See Brannum v. Spring Lakes Country Club, Inc., 203 Kan. 658, 455 P. 2d 546.) This appeal is brought to finally determine the extent and nature of the claimant’s disability. We need not detail the circumstances out of which claimant’s injury arose. These may be obtained from the opinion in tire first appeal. Suffice it to say claimant, Clarence D. Brannum, received five bullet wounds from a .22 caliber pistol. One bullet struck him in the chest, one in the arm, one in his shoulder, one grazed his arm and one grazed his skull. His initial hospitalization lasted from March 16 to March 30, 1965. He returned to work immediately on his release from the hospital. He was finally hospitalized from April 27 to May 31, 1965, for removal of a bullet lodged in his shoulder-arm joint. On removal of the bullet and release from the hospital he returned to work. The claimant appeals from the court’s finding that claimant suffered a permanent disability to his right arm of 30 percent loss of use of such arm, a scheduled disability only. The quest in this appeal will be to determine whether the evidence when viewed in the light most favorable to the district court’s award supports the findings of fact of the trial court. (Riedel v. Gage Plumbing & Heating Co., 202 Kan. 538, 449 P. 2d 521; Osman v. City of Wichita, 203 Kan. 313, 454 P. 2d 427.) There was medical testimony the claimant suffered no permanent bodily disability from the bullet wound in the chest or from the bullets which grazed his arm and skull. The bullet which entered the right arm damaged the radial nerve in that arm and resulted in some loss of motion in his arm and a weakening of grip in his right hand. The bullet which lodged in his shoulder-arm joint did not damage the bone structure of the shoulder. It lodged in and was removed from the “greater tuberosity of the humerus”, which is the upper end of the arm bone and fits into the shoulder capsule. After the bullet was removed claimant continued to play golf and, although his score did suffer, his score on the golf course is usually par. The testimony which precipitated the present appeal was given by Dr. Kaufman. He testified generally that claimant had a permanent disability as a result of the shoulder wound and arm wound. He then testified, “Considering the various injuries, and using the guide put out by the American Medical Association as to what this would all total up, I figured this would be about 30 percent of his arm or 18 percent of his body.” These percentages were given in the alternative. The loss of use of an arm is a scheduled disability under K. S. A. 44-510 (3) (c) (13) [now K. S. A. 1970 Supp. 44-510d (13)] which provides an award of sixty percent (60%) of the average weekly wages, not to exceed $42.00 per week, during two hundred ten (210) weeks. Disability of the body as a whole is nonscheduled under K. S. A. 44-510 (3) (c) (24) [now K. S. A. 1970 Supp. 44-510e] which provides an award of sixty percent (60%) of the difference between the amount he was earning prior to said injury and the amount he is able to earn after such injury, not to exceed $42.00 per week, during a period not exceeding four hundred fifteen (415) weeks. In Peterson v. Hill Packing Co., 178 Kan. 697, 290 P. 2d 822, claimant suffered a fracture and non-union of the upper leg bone. The medical testimony indicated claimant received a scheduled injury resulting in 85% disability of the leg or a probable general body disability of 50% because of the loss of use of the leg. The trial court held that claimant suffered a scheduled disability of the leg. On appeal this court held there was evidence to support the conclusion of the trial court and the disability was a scheduled one. Peterson is similar in many respects to the present case. There we applied the rule that if there is evidence to support the finding of a scheduled disability the district court’s judgment should be affirmed. Claimant relies upon Bray v. Carrothers Construction Co., 131 Kan. 766, 293 Pac. 504. In Bray claimant sustained a fracture and non-union of the collar bone. The trial court found the injury to the collar bone and the muscles of the shoulder caused pain which limited claimant’s ability to perform in his former employment because the condition limited use of his arm. Physical injury was limited to the collar bone and shoulder muscles but the trial court concluded that the injury resulted in a scheduled disability of the arm. This court reversed. It held as a matter of law the finding of injury to the collar bone and shoulder muscles required an additional body disability and an award beyond the scheduled disability of the arm. We believe that the Bray case is distinguishable from our present case by reason of the location, extent and nature of the injury resulting in the disability. In the present case as previously pointed out the claimant suffered no disability from the bullet wounds in his chest and head. The doctors so testified and there is no substantial evidence to the contrary. The damage to the radial nerve in the mid-arm resulted in some loss of hand grip. It also resulted in some loss of motion and use of his arm. The question raised here is more dependent upon the extent and nature of the injury to the shoulder-arm joint. It is noted that the bone structure of the shoulder was not fractured by the bullet. Dr. Kaufman testified concerning the removal of the bullet. He stated that the bullet was removed from the right shoulder; it was found to be directly in the joint beneath the rotator cuff; there was some damage to the cartilage of the shoulder joint, although this did not appear to be too severe, considering the nature of the injury; the joint and tendons were repaired; and claimant recovered from the operation without difficulty. He further testified there would continue to be some pain in the joint and some limitation of motion of the arm. However, he discerned a gradual improvement in the six months which followed the operation. The claimant returned to his work at Spring Lakes Country Club, Inc., as soon as he was released from the hospital. We conclude there is evidence in the record to support the finding that claimant’s injuries resulted in a scheduled disability, a 30 percent loss of the use of his right arm. The claimant further appeals from a finding of the trial court on the amount of his basic weekly wage. As we view the situation the average weekly wage of $84.00 as found by the trial court is sufficient, when the statutory 60% is applied, to exceed the maximum weekly payment of $42.00, and any finding increasing the average weekly wage would not result in an increase in the award. Our conclusion that there is evidence to support the finding of a scheduled disability, therefore, renders any decision as to the amount of claimant’s average weekly wage immaterial. This court will not consider questions immaterial to a determination of the controlling issue. (Greenwood v. Blackjack Cattle Co., 204 Kan. 625, Syl. ¶ 4, 464 P. 2d 281.) The judgment is affirmed.	[ -80, 123, -35, 30, 11, 98, 34, 90, 97, -96, 39, 115, -25, -49, 77, 109, -20, 63, 85, 123, -4, -77, 83, 9, -14, -77, 59, -43, -79, 123, 102, 85, 13, 112, 10, -107, -30, -128, 101, 92, -114, -124, -85, -19, 89, 64, 56, 46, -52, 11, 17, -98, -54, 42, 16, -57, 105, 40, 75, -85, -48, -23, -118, 5, -7, 16, -93, 6, -100, 38, -40, 8, -104, 49, 72, -24, 16, -90, -126, 116, 99, -119, 68, 99, 99, 50, 29, 77, 104, -72, 15, -38, -113, -91, -101, 57, 35, 37, -100, -99, 122, 68, 6, 124, -7, 93, 92, 108, 11, -106, -74, -109, -49, 56, -98, -86, -21, -123, -76, 117, -50, -94, 92, 65, 115, -101, -109, -110 ]
The opinion of the court was delivered by Fatzer, J.; This was an action to cancel a certificate of stock representing 1556 shares of Technology Fund, Inc., registered in the names of the plaintiff, Belle Erdman, and the defendants, Oda V. Sowle, Randall D. Sowle and Leota E. Sowle, as joint tenants with right of survivorship. The certificate of stock in question had been purchased by the plaintiff from her own funds. It was issued to the plaintiff as a joint tenant owner with Randall D. Sowle and Leota E. Sowle pursuant to the promise and agreement of the Sowles to remain in the home with the plaintiff and care and look after her and her brother as long as they lived. The plaintiff alleged the Sowles repudiated their agreement to care for her and her brother, and continued to claim an interest in the stock certificate. The case was tried by the district court which madé findings of fact and conclusions of law, and rendered judgment cancelling the stock certificate and vesting title to 1556 shares in the plaintiff. The facts involved in this litigation are succinctly stated in the district court’s findings of fact and conclusions of law upon which judgment was rendered. The findings of fact best tell the story of this controversy, and we quote those findings and the district court’s conclusions of law in full: “Findings of Fact “1. Plaintiff and defendant, Oda V. Sowle, are sisters; Randall D. Sowle is the son of Oda V. Sowle, and Leota E. Sowle is the wife of Randall. Plaintiff has a brother, Earle Zerbe, who is 74 years of age and has been retarded and incapable of supporting himself all his life. He is now in a rest home at Kensington, Kansas, where he is maintained and supported by plaintiff except for a social security payment of $36.00 per month. “2. The defendant, Oda V. Sowle, died on July 17, 1969, and Randall D. Sowle, the sole heir of Oda V. Sowle, has been substituted as representative of her interests herein. “3. Plaintiff is a widow of the age of 94 years; she and her husband owned and operated the Erdman Hotel in Smith Center for many years, and after the husbands death in 1953, plaintiff continued to operate the hotel. Oda V. Sowle and her husband, Eugene Sowle, moved to the Erdman Hotel in 1950 and made their home there until the hotel was sold in 1967. After the sale of the hotel the plaintiff purchased a home in Smith Center and she and her sister, Oda, and Eugene Sowle, moved to the new home and lived together until December 1968, when Oda and her husband left the home. During the more than 18 years that plaintiff and her sister and the sister’s husband lived together, their relations were pleasant and harmonious and without any troubles. In February 1968, Eugene Sowle suffered an amputation of his leg, and on July 15, 1968, Oda V. Sowle suffered a stroke. “4. The plaintiff had invested certain of her funds over a period of years in the common stock of Technology Fund, and was the owner of 1556 shares of such stock at the times mentioned herein. Following the illness of Oda V. Sowle when she suffered a stroke, Randall D. Sowle and his wife, Leota, came to the home of plaintiff, arriving there on July 16, 1968; that shortly after their arrival at the home of plaintiff, the defendant, Randall Sowle, suggested to plaintiff that the certificate for the 1556 shares of Technology Fund include therein the names of he and his wife, Leota, as joint owners, and it was then orally agreed between plaintiff and Randall D. Sowle and Leota E. Sowle that the said Randall D. Sowle and his wife, Leota, would remain in the home of plaintiff and care for plaintiff and her brother, Earle Zerbe, until they were gone, and in consideration thereof the names of Randall D. Sowle and Leota E. Sowle would be placed on the certificate for the 1556 shares of Technology Fund Stock. The name of Oda V. Sowle was also to be placed on the said certificate along with that of plaintiff, and the ownership to be in joint tenancy with the right of survivorship. Pursuant to the aforesaid agreement the certificate Number J217202, dated July 29, 1968, of Technology Fund, Inc., for 1556 shares, was secured with the names of Belle Erdman, Oda V. Sowle, Leota E. Sowle and Randall D. Sowle set forth therein as joint tenants, with the right of survivorship. This certificate was obtained through the services of Claude Gripp, a representative of Technology Fund, who testified as a witness concerning the transaction, and whose testimony corroborated the agreement between plaintiff and Randall Sowle and his wife, as to the purpose of placing the names of Randall and his wife on the certificate in question. “5. Pursuant to the agreement of the parties, Randall D. Sowle and his wife remained in the home of plaintiff from about July 16, 1968, to December 24, 1968, at which time they left the home and moved to a rental property in Smith Center, taking with them Eugene Sowle and Oda V. Sowle. That their leaving the home of plaintiff was without fault of plaintiff. That shortly thereafter all of the Sowles moved from Smith Center to Buffalo, Missouri. That none of the Sowles ever returned to the home of plaintiff after December 24, 1968, nor did they render to plaintiff any service of care after that date. “6. The court finds that the said Randall D. Sowle and Leota E. Sowle repudiated their agreement with plaintiff and failed to perform the same; that they failed and refused to care for plaintiff and her brother, Earle Zerbe, and by reason of such failure and repudiation of the said agreement the said stock certificate Number J217202 should be cancelled and the title to the said shares vested in plaintiff. The court finds that the failure and refusal of Randall D. Sowle and Leota E. Sowle to comply with their agreement raises a presumption that they did not intend to comply with it in the first instance and that the agreement was invalid in its inception, (179 K. 471.) “7. The court finds that the defendant, Technology Fund, Inc., should be directed and ordered to issue a new certificate for the 1556 shares of common stock of its company in the name of plaintiff, or in such manner as the plaintiff shall direct. “8. The court finds that Oda V. Sowle contributed to the purchase cost of certain furnishings and personal property which is now in the home of plaintiff, and it has been stipulated by the parties that if judgment be entered against plaintiff for the payment of the sums so contributed by Oda V. Sowle, that the amount thereof shall be in the sum of $750.00. The court finds that this sum should be paid by plaintiff and that plaintiff be decreed to be the owners of all such property, and that Randall D. Sowle, the substituted party, have judgment for $750.00 against plaintiff. “9. Defendants offered testimony concerning alleged statements of plaintiff to the effect that it was her intentions to leave all her property to her sister, Oda V. Sowle, if living, but if she was not living, then to Randall D. Sowle. The court finds that if such evidence was relevant or material herein, that it failed to prove that plaintiff ever intended to leave her property to Randall D. Sowle, nor did it prove that Randall D. Sowle had any vested right in any property of plaintiff. “Conclusions of Law “The court concludes from the findings made herein that the oral agreement for the placing of the names of Randall D. Sowle and Leota E. Sowle on the Technology Fund certificate was made and entered into, and that Randall D. Sowle and Leota E. Sowle repudiated said agreement and failed to perform the same. That the certificate of Technology Fund, Inc., Number J217202 for 1556 shares of its common stock, be cancelled and Belle Erdman be decreed to be the sole owner of said 1556 shares of stock; that the defendant, Technology Fund, Inc., be ordered to issue a new certificate for said 1556 shares of said stock in the name of Belle Erdman, or in such manner as the plaintiff herein may direct; that the defendants, Randall D. Sowle and Leota E. Sowle be barred of all claim, right, title or interest in the said shares of stock involved herein; that Oda V. Sowle, having died as herein found, has no interest or title in the said 1556 shares of stock; that Randall D. Sowle, the substituted party, have judgment against plaintiff for $750.00 for funds contributed by Oda V. Sowle toward the purchase of furnishings and personal property in plaintiff’s home, and upon payment of such sum plaintiff shall be decreed the owner of all such personal property. That the costs of this action be taxed to plaintiff.” This was basically a fact case. The district court was sitting as a court of equity at the trial. It had the opportunity of observing the attitude and demeanor of the parties while testifying in their own behalf as witnesses, and to determine the existing equities as between them. In that respect, the district court was in a better position to determine the equities than an appellate court reading the cold printed pages of the record. No useful purpose would be served by detailing the evidence concerning the transaction. We have carefully read the record containing the testimony of the witnesses for both sides, and conclude the findings are amply supported by the evidence. We adhere to the rule that where the district court has made findings of fact based upon substantial evidence, such findings will not be disturbed on appellate review, notwithstanding the record may reflect evidence, which if believed, would support a contrary or different finding. The question of law involved has been before this court in numerous cases, and the controlling principle was fully discussed in Chapman v. Warmbrodt, 175 Kan. 125, 259 P. 2d 158, where it was held: “The doctrine which obtains in Kansas, as in a great majority of the states, is that a conveyance of property, on consideration of agreement to furnish support, is in a class peculiar to itself, and that if a grantee in such conveyance repudiates or substantially fails to perform his agreement a court of equity may, upon the petition of the grantor, decree a cancellation of the conveyance.” Syl. ¶ 1.) See, also, Bennett v. LaDoux, 194 Kan. 216, 398 P. 2d 590, and cases cited. A district court, sitting as a court of equity, is not required to render the specific decree prayed for, but may render a decree in accordance with its own judgment or discretion as to what justice between the parties demands, in view of the pleadings, the pretrial order, and the evidence. (Eberhardt Lumber Co. v. Lecuyer, 153 Kan. 386, 110 P. 2d 757.) In Garnes v. Barber, 180 Kan. 793, 308 P. 2d 76, it was held: “Where a trial court, sitting as a court of equity in an action to cancel a deed executed and delivered in consideration of an agreement to support the grantor for the remainder of his natural life, has before it all the property involved, all the parties claiming rights thereto, and their respective claims, it may and should determine all rights of the parties and render an appropriate decree with respect thereto in accord with the demands of justice.” (Syl. ¶ 1.) The defendants contend for the first time the plaintiff is not entitled to recission by reason of her failure to place them in status quo. The issue is not to be found in the defendants’ statement of points, and for this reason it may not be considered on appeal. Rule No. 6 of this court, relating to Appellate Practice provides, in part: “. . . An issue may be raised in the statement of points regardless of whether a motion for a new trial was filed; but no issue, other than an issue going to the jurisdiction of the court over the subject matter of the litigation, may be briefed or will be considered on the appeal unless included in the statement of points . . .” The defendants make the final claim the joint tenancy ownership of the stock was severed by the plaintiff when she filed this action. They refer to 64 A. L. R. 2d 944, 956, Anno: Joint Tenancy-Termination, and argue they are now the owners of three-fourths interest in the property. The district court rejected the claim and entered judgment vesting the plaintiff with the sole ownership of the shares of stock in question. This was within the power of a court of equity to determine, and the claim here made lacks merit. Neither Randall D. Sowle, nor his wife, Leota, had invested any money or funds in the stock, and they lost nothing. But the court’s decree was not a one-way street. Judgment was entered in. favor of Randall D. Sowle in the sum of $750 for certain furnishings and personal property his mother, Oda V. Sowle, contributed to the plaintiff’s home in her lifetime. Under all the facts in this case, the district court’s decree was in accordance with the demands of justice, and that decree is affirmed.	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The opinion of the court was delivered by Fatzer, J.: On June 15, 1967, three cases were filed separately by the respective plaintiffs, John S. Haley, Stuart G. Hazard, and Karl W. Stock, against the defendant, James W. Hershberger. On July 20, 1967, the fourth case was filed by plaintiff, Joseph D. Beck, against the same defendant. The events giving rise to these cases began in November, 1964, at which time plaintiffs Hazard, Stock, and Beck were contacted by the defendant who offered to sell certain off and gas leasehold interests in land located in West Virginia. Similar contracts were offered to plaintiff Haley during February, 1965. Hazard invested $86,000 in thirteen gas wells drilled by the defendant during the period from December, 1964, through May, 1965. Haley invested $7,700 in two oil wells drilled during the period from May through July, 1965. Beck invested $24,000 in six gas wells drilled during the period of December, 1964, through May, 1965. Stock invested $40,000 in eight gas wells drilled during the same period. The plaintiffs alleged the defendant represented that the wells were very successful, and would produce large volumes of gas. In August and September, 1965, Hazard, Beck, and Stock received checks for the sale of gas from wells first connected to the pipeline. From September to December, 1965, other gas wells were connected to the pipeline and initial run checks were received by the plaintiffs. The first three counts of each petition were substantially the same, alleging misrepresentation in Count 1, negligence in Count 2, and rescission in Count 3. Counts 4 and 5 of the Haley petition alleged sale of unregistered securities. Count 4 of the Hazard and Stock petitions alleged breach of warranty. The defendant’s answer admitted the respective payments made by the plaintiffs, but denied all allegations of liability. The statute of limitations for each such count is two years. (K. S. A. 60-513.) In the three cases filed June 15, 1967, the plaintiffs instructed that service of process be made upon Hershberger as follows: In the Haley case, by service at his office; in the Hazard case, by service upon him at the central YMCA Branch between 12:00 noon and 1:00 p. m. and in the Stock case, by service upon him at his home in Wichita. On June 19, the summonses were returned showing the sheriff received them on June 16, 1967, and served the same on that date by leaving a copy of the summons and a copy of the petition in each case personally with Hershberger at 10:30 a. m. In the Beck case, filed July 20, 1967, the return on the service of summons showed the sheriff received the summons on July 20, 1967, and on August 14, 1967, he served Hershberger by leaving a copy of the summons and a copy of the petition, “with Mrs. Berenice Mitchell-SecretaryHershberger Oil Company, suite 807, 1st National Bank Bldg. 9:40 a. m.” As hereafter indicated, various orders established the time for the defendant to answer or otherwise plead in all cases. Discovery proceedings by the plaintiffs and the defendant were promptly instituted, including the taking of various depositions and motions for producing and copying of documents, which were completed on November 28, 1967, by the defendant taking Beck’s deposition. It was jointly stipulated by the parties in open court that the defendant would have twenty days to answer after the taking of Beck’s deposition. On December 18, 1967, and in accordance with the order of the district court, Hershberger filed his answer in each of the four cases. In each case, among other defenses alleged, the ninth defense was as follows: “By fully answering herein, defendant does not waive and hereby specifically reserves and relies upon the following defenses: lack of jurisdiction over the person of this defendant; insufficiency of process; insufficiency of service of process; the failure of the Petition to state a claim upon which relief can be granted; and failure to join an indispensable party.” Hershberger’s motion to dismiss for lack of jurisdiction over his person because of the insufficiency of process, and the insufficiency of service of process, was based upon the fact the original summonses were delivered to Hershberger’s secretary, Mrs. Berenice Mitchell, at the office of the Hershberger Oil Company, First National Bank Building, Wichita. The plaintiffs concede that fact. Likewise, in the Beck case, the return on the original summons showed that service was made upon Hershberger by leaving a copy of the summons and the petition with his secretary, Mrs. Mitchell. Accordingly, and on June 10, 1968, the district court sustained Hershberger’s motion, and dismissed the petitions. On April 4, 1968, the plaintiffs in each case obtained personal service on Hershberger by service of alias summons. Hershberger’s motion for summary judgment upon the ground that on April 4, 1968, the causes of action stated in each of the four petitions were barred by the statute of limitations, was sustained by the district court on February 3,1969. On February 28, 1969, the plaintiffs in all cases filed notices of appeal from the district court’s order of February 3, 1969, entering summary judgment against the plaintiffs. Later, and on July 8th and 9th, 1969, the plaintiffs in all cases filed amendments to their notices of appeal, purporting to specify for appellate review, the district court’s order of June 10, 1968, sustaining Hershberger’s motion dismissing the petitions because of insufficiency of process, and the insufficiency of service of process. Hershberger’s motion to dismiss the plaintiffs’ amendments to their notices of appeal for failure to comply with Rule No. 6 (p) of the rules of this court, was sustained by the district court on August 22, 1969. The plaintiffs concede the statute of limitations had run prior to December 18, 1967, when Hershberger answered, but assert that the district court made no finding as to the exact date the statute of limitations ran, instead, the district court held that since the causes of action were only first properly commenced by alias summonses served on April 4, 1968, their causes of action were barred inasmuch as they accrued more than two years prior to that date. Thus, they argue for the purposes of this appeal, any showing by them that the causes of action were properly commenced prior to April 4, 1968, requires a reversal of the district court, and advance several reasons why personal jurisdiction was acquired over Hershberger prior to April 4, 1968 — first, the sheriff’s return showing personal service on Hershberger was conclusive on the parties; second, the service of summons substantially complied with K. S. A. 60-304 (a), and third, the conduct of the defendant prior to raising any issue over personal jurisdiction waived such defenses. Considering the plaintiffs’ first alleged error, we are of the opinion there is no merit in the contention that where the sheriff’s return shows personal service, it is conclusive on the parties and cannot be impeached. K. S. A. 60-212 (b) provides, in part: “Every defense, in law or fact, to a claim for relief in any pleading . . . shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion . . . (4) insufficiency of process; (5) insufficiency of service of process . . .” Little purpose would be served in permitting a defendant to assert insufficiency of service of process, if he were prohibited from presenting facts to establish the claim. The plaintiffs rely on Goddard v. Harbour, 56 Kan. 744, 44 Pac. 1055, and related cases. The case is not in point. In Goddard an attempt was made to challenge the veracity of the sheriff’s return in a collateral proceeding after judgment had been rendered. The opinion makes this quite clear by stating “. . . It is not necessary now to inquire how far the court may go in setting aside a service when challenged in the suit in which it is made before judgment . . .” (l. c. 747.) We think Goddard specifically eliminated the question before the court in the instant case. The general rule that a sheriff’s return of summons may not be impeached by oral testimony after judgment as to matters therein recited, which were clearly within the sheriff’s personal knowledge (Kackley State Bank v. Nichols, 162 Kan. 648, 179 P. 2d 186), has no application in a case where the sheriff’s return is challenged before judgment. While there is an irreconcilable conflict of authority on the question of the conclusiveness of a return of process, this court is of the opinion the rule announced in 72 C. J. S., Process, § 100, p. 1141, is most nearly in accord with the liberal provisions of the Kansas Code of Civil Procedure. The rule reads: “. . . In a number of jurisdictions the more liberal rule prevails that, while a return of process is strong or at least prima facie evidence of the facts stated therein, as discussed supra § 99, it is not conclusive, even as to parties and their privies, but may be rebutted or impeached, unless, it has been said, the rights of third persons have intervened.” The plaintiffs next contend that a service of summons substantially complies with K. S. A. 60-304 (a) where the defendant receives actual notice of the pending action. K. S. A. 60-304 (a) provides in part: “Upon an individual other than an infant or an incompetent person, by delivering a copy of the summons and of the petition to him personally or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the petition to an agent authorized by appointment or by law to receive service of process . . .” Leaving a copy of the petition and summons with the secretary of the defendant is not substantial compliance with any of the provisions mentioned for personal service. The secretary was not an authorized agent to receive service of process. (Briscoe v. Getto, 204 Kan. 254, 462 P. 2d 127.) This court has held that jurisdiction over the person of the defendant can be acquired only by issuance and service of process in the method prescribed by statute, or by voluntary appearance. (Butler County Comm'rs v. Black, Sivalls & Bryson, Inc., 169 Kan. 225, 227, 217 P. 2d 1070, and cases cited therein.) The plaintiffs place great stress upon K. S. A. 60-204 which provides, insofar as here material, the following: . . In any method of serving process, substantial compliance therewith shall effect valid service of process if the court finds that, notwithstanding some irregularity or omission, the party served was made aware that an action or proceeding was pending in a specified court in which his person, status or property were subject to being affected.” The statute was applied in Briscoe v. Getto, supra, and the point was decided contrary to the plaintiffs’ contentions. This court said: “This is a case of first impression and we find no precedent to guide us. However, as we read the statute it seems clear that new methods of service were not anticipated. There must first be substantial compliance with some statutory method of service. Irregularities or omissions will then be ignored if the court finds that the party to be served was made aware that an action or proceeding was pending, etc. “The appellants were attempting personal service under K. S. A. 1967 Supp. 60-304 (a). In order to effect service of process directed to a natural person, tire summons must be personally served on such person, or left at his dwelling house or usual place of abode with some person of suitable age and discretion, or served upon an agent authorized by appointment or law, or upon special order of the trial court by leaving a copy of the summons at his dwelling house or usual place of abode. “There is no provision for service of summons by leaving a copy with the secretary of the person to be served or by leaving a copy at the place of business of the person to be served. Such new method of service cannot be originated by K. S. A. 60-204. “There was no method of statutory service that was substantially complied with. The provision for ignoring irregularities or omissions, if the trial court finds that the party was aware that an action or proceeding was pending in a specified court in which his person, status or property was subject to being affected, was not brought into operation.” (1. c. 257.) See, also, Thompson-Kilgariff General Insurance Agency, Inc. v. Haskell, 206 Kan. 465, 479 P. 2d 900, where the foregoing rule was applied and followed. The plaintiffs contend that Hershberger’s conduct prior to raising any issue over personal jurisdiction waived the defense of lack of personal jurisdiction, insufficiency of process, and insufficiency of service of process. The conduct of Hershberger referred to by the plaintiffs relates to motions in the Beck case for an order entered September 19, 1967, extending the time to plead until after completion of Beck’s deposition, and to a motion for an order entered October 16, 1967, covering all four cases extending the time to plead until twenty days following Hershberger’s conclusion of the last deposition of the four plaintiffs. Hershberger’s extensions of time were obtained in a timely and orderly manner. As indicated, his answers were filed within twenty days after the conclusion of his taking Beck’s deposition, all in accordance with the district court’s order. The question for the court’s determination is, did the filing of the motions for extension of time to answer, the taking of discovery depositions, and the commencement of proceedings for inspection and copying of documents, constitute a waiver of the defense of insufficiency of process and insufficiency of service of process? We are of the opinion they did not. K. S. A. 60-212 has abolished the old distinction between general and special appearances. A defendant need no longer appear specially to attack the court’s jurisdiction over him. The defense of lack of jurisdiction of the person is waived only when it is not raised by motion or in the answer itself. This is clearly stated by the express terms of K. S. A. 60-212 (h). The defense is then waived not because of defendant’s voluntary appearance, but because of the failure to assert the defense within the time prescribed by the rules. Preliminary motions which do not constitute a defense or go to the merits of the action do not constitute a waiver. In Small v. Small, 195 Kan. 531, 407 P. 2d 491, this court considered the question now presented, and in considering waiver of lack of jurisdiction of the person, it said: “The defense of lack of jurisdiction may be asserted by motion with other defenses without waiving the objection. (Orange Theatre Corp. v. Rayherstz Amusement Corp., 139 F. 2d 871, cert. den. 322 U. S. 740, 64 S. Ct. 1057, 88 L. Ed. 1573.) “The old distinction between a general and special appearance loses its significance under K. S. A. 60-212 (b) as a party may plead to the merits and at the same time contest jurisdiction over his person. The purpose of the provisions is to permit the combining of an objection to the jurisdiction with pleadings on the merits without the old ritual of first entering a special appearance. (United States v. Balanovski, 236 F. 2d 298, cert. den. 352 U. S. 968, 1 L. ed. 2d 322, 77 S. Ct. 357, reh. den. 352 U. S. 1019, 1 L. ed. 2d 561, 77 S. Ct. 555.) . . .” (1. c. 538.) See, also, Panhandle Eastern Pipe Line Company v. Brecheisen, 323 F. 2d 79. The following is a comment in 1 A Barron & Holtzoff, Federal Practice and Procedure, § 370, p. 527, with respect to Federal Rule of Civil Procedure No. 12, from which K. S. A. 60-212 was taken: “A motion for extension of time to answer. . . does not waive objec tions or defenses, nor may extensions of time to take depositions before answer be regarded as a waiver of objections to venue or jurisdiction of the person.” This court concludes that, as did the district court, the statute of limitations had run against the claims of plaintiffs before jurisdiction was legally obtained over the person of the defendant. The foregoing conclusion makes it unnecessary to determine Hershberger’s challenge to the plaintiffs’ right to appeal. The judgment is affirmed.	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The opinion of the court was delivered by Kaul, J.: Samuel Lott, Sr. (defendant-appellant) appeals from a conviction by a jury of murder in the second degree. The principal contention on appeal is that the trial court, erred in refusing to instruct the jury on lesser included offenses. The defendant claims there is sufficient evidence that the shooting occurred in the heat of passion to justify an instruction on manslaughter. The state’s theory is that defendant either commit ted murder in the second degree or acted in self-defense and committed no crime. The state’s evidence consisted of the testimony of four witnesses —each of whom gave essentially the same description of the events leading up to the shooting. On the afternoon of February 7, 1970, a group of people were drinking Scotch whiskey and listening to music in defendant’s home at 1432 Wabash, Wichita. The assemblage consisted of neighbors and acquaintances of defendant. At the time of the shooting, in addition to defendant and his daughter, Lee Pearl Lott, those present were John Henry Straughter, the victim; his father, Isaah Straughter; Shirley Mae Curtis, a next door neighbor; Joy Ann Lee, a friend of Lee Pearl Lott; and George Edward Howard, apparently a friend of the deceased. John Henry Straughter was one of the last to arrive. He soon fell asleep in a chair. When Lee Pearl Lott attempted to awaken John Henry she was told by her father (defendant) to get away from him and go back to her bedroom. The state’s witnesses testified that John Henry Straughter was awakening and attempting to get out of his chair when he was shot once or twice by defendant. Defendant shot Straughter again after he had risen from the chair. Finally Straughter staggered out through the front door and collapsed on the front yard. He was taken to the hospital where he died the same day. Two officers of the Wichita Police Department arrived at the Lott residence soon after the shooting. They took a pistol from defendant which was later determined to be the pistol from which the fatal shot was fired. Defendant’s evidence depicted a different version of the affair. Defendant and his daughter (Lee Pearl Lott) testified that defendant requested John Henry Straughter to leave or the police would be called, that Straughter then came toward defendant “as a prize fighter” with his “dukes” up. Defendant retreated to the bedroom to telephone the police; he was followed by Straughter, defendant got the pistol from a table near the bed. Defendant testified he first fired twice to scare Straughter but only made him angrier. The defendant then fired at Straughter but did not know how many times he hit him. The trial court fully instructed the jury on murder in the second degree and self-defense. Defendant objected on the grounds the jury was not instructed on first, third and fourth degree manslaughter. Instructions in a criminal prosecution are to be confined to the issues in the case as determined by the charge in the information and the evidence adduced at the trial. Failure to instruct on some lesser degree of the crime charged is not ground for reversal if the evidence at the trial excludes a theory of guilt on the lesser offense. (State v. McDermott, 202 Kan. 399, 449 P. 2d 545, cert. den. 396 U. S. 912, 24 L. Ed. 2d 187, 90 S. Ct. 226; State v. Hockett, 172 Kan. 1, 238 P. 2d 539; and State v. Linville, 148 Kan. 142, 79 P. 2d 869.) The abstract clearly shows the case was tried by the state on the theory of homicide with malice, but not with premeditation while the theory of defendant was solely self-defense. The jury chose to believe the state’s version. There was no evidence to support a theory of manslaughter in any degree. The defendant’s testimony was that he was acting in self-defense rather than because of provocation to the degree necessary to constitute “heat of passion” as characterized by this court. Defendant’s description of the shooting is as follows: “Answer: So after Mr. John Straughter come in — that was a few peoples who heard the conversation due to the fact I didn’t expose his business so after I told — after Mr. John told me what he wanted, I told him to get up and get out and he — John got up and wheel on me as a prize fighter. “Question: Let me stop you right there, Mr. Lott. What do you mean when he wheeled on you? “Answer: Well, he came up with his dukes and was down in a position to fight was when he came after me. “Question: He was a younger man? “Answer: The man was about half as old as I am. He was — I would give him 23, 24 years of age. “Question: Okay, Please go on. What did you do then? “Answer: And I run backwards. Mr. Straughter and I runned in the same direction. If you allow me to do the same idling. Right here is where I was talking to Mr. Straughter. Right here is where he was sitting. He came over after me, clear over to this divan here which is a day bed and by that time I was in tdie direction and I grabbed the telephone and told him I would call the police and they could get him out. He cursed me and told me that I wouldn’t call no police and so he made a break for me when I went to dial the phone— “The Court: Sir, can you turn around this way a little bit more so we can hear you? “Answer: (witness complies) “The Court: Thank you. “Answer: I went to dial the phone. I reach the — got the gun and I throwed it on Mr. Straughter and it seems to be that all the testimony sure are going to be different. Mr. Straughter didn’t regard the gun. I fired two shots. The gun was knocked down by my daughter when she struck the table. The table was betwixt Mr. Straughter and I. The first two bullets went straight due to the fact that the gun was knocked off balance. I gave two slightly wounds to Mr. Straughter as I remember it and Mr. Straughter was still on his feet. Now, the gun was being fired in the direction from here to the front room which everyone has said. You can figure it out for yourself. Mr. Straughter fell right here along by the divan. After the shot, Mr. Straughter still had a chance to leave. He didn’t. Well, I had no other choice but to try to hurt Mr. Straughter and to keep him from hurting me so I then fired a shot which I thought would wound him in the hip but it was a little too high. I then goes on and finished the call to the police, the call for the police.” The same issue was presented in State v. McDermott, supra, which we believe to be controlling here. In McDermott we said: “This court has said the term ‘heat of passion’ includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror. (State v. Linville, supra; State v. Jones, 185 Kan. 235, 241 P. 2d 1042.) However, in order for a defendant to be entitled to a reduced charge because he acted in the heat of passion his emotional state of mind must exist at the time of the act and it must have arisen from circumstances constituting sufficient provocation.” (p. 402.) In the instant case, the defendant’s own testimony refutes any suggestion that he acted in the heat of passion. When defendant testified he fired a shot directly into Slaughter’s body, after Straughter had fallen by the divan; and further that the firing of that shot was done purposely, then there can be no doubt defendant was in control of his actions and his reason at the time. The issue whether defendant’s actions constituted second degree murder or self-defense, as explicitly framed by the evidence, was properly submitted to the jury. Although not argued on appeal defendant submits one further contention in his brief. Defendant claims a recorded statement of George Howard was erroneously admitted into evidence. At the trial defendant first objected but later agreed the statement was properly admitted under K. S. A. 60-460 (a) which reads: “(a) Previous statements of persons present. A statement previously made by a person who is present at the hearing and available for cross-examination with respect to the statement and its subject matter, provided the statement would be admissible if made by declarant while testifying as a witness:” The witness (George Howard) was present in the courtroom but apparently he refused to testify for the state at the time of trial. He did testify for defendant and was examined and cross-examined. It appears that Howard had become a “turncoat” witness, a circumstance which 60-460 (a) is intended to meet. In the 1970 Cumulative Supplement to his commentary, Judge Gard points out the important categories in which 60-460 (a) is intended to operate with major significance as an exception to the rule against hearsay. One category specifically enumerated is: “(2) the ‘turncoat’ witness situations where the prior statement may be received as substantive evidence and not merely as impeachment; . . .” (Gard, Kansas Code of Civil Procedure Annotated, 1970 Cumulative Supplement, § 60-460 [a], p. 87.) Finding no error, the judgment is affirmed.	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The opinion of the court was delivered by Harman, C.: The action in district court was one for damages for personal injuries resulting from a fall in defendants’ supermarket. In a jury trial at the conclusion of plaintiffs evidence the court sustained defendants’ motion for directed verdict. Plaintiff has appealed from that order. The single error presented on appeal is the trial court’s action in removing the case from jury consideration. Plaintiffs evidence on the liability issue consisted of her own testimony and that of the operator of a janitorial service and an expert testing engineer. We briefly summarize that evidence. On February 19, 1968, plaintiff was the proprietor of a rest home. According to her testimony, at about 9:00 a. m. she entered defend ants’ supermarket at Twenty-first and Grove streets in Wichita for the purpose of buying fish. She walked around the cash registers intending to look at the contents of the frozen food counter but when she got to that aisle she saw a gentleman standing behind the meat counter at the far end of the aisle. She then decided to ask him about fish and started toward him. As she was walking along the aisle her right foot hit an object and it was just like she had stepped on a roller skate. Her right foot went straight out and she fell in a twisted manner, striking her head on the frozen food counter. After first aid was rendered she asked what she had slipped on. The butcher she had seen at the meat counter, who had come to her after the fall, picked up an object and said, “It is a piece of hard gum”. Plaintiff saw the gum at the time but did not see any other foreign material or objects in the immediate area where she fell. At the time she stepped on the gum it had not been cut and was a solid piece, light on the bottom side and dark on the top. Plaintiff weighed 240 pounds at this time. A Mr. Steele testified he and two partners operate a janitorial service in Wichita and under an oral agreement, for a flat weekly fee, perform floor cleaning services for defendants’ eight supermarkets in Wichita, including the one in question. According to their schedule they worked in each store three or four times per week, scrubbing and buffing the floor on each occasion and waxing it when they thought it necessary. They performed this work after the store closed each night. Store hours were from 6:00 a. m. to midnight daily. Defendants’ employees at each store were supposed to sweep the floor just prior to closing each night. The witness believed the store employees revolted against this last sweeping because they usually did a poor job of it. He had told defendants’ officials that all the stores should be swept three or four times a day because the parking lots were poorly kept and people tracked in sand which would cut into the floor and ruin the waxing job. He had griped to the store management several times about the sweeping but “it didn’t do any good”. He had worked for other stores in the Wichita area where floors were swept more frequently and were better kept than defendants; these stores were open for shorter hours than defendants. Mr. Steele and his partners arrived at the subject store sometime during the early morning hours of the day plaintiff fell. They did not wax the floor at that time. They would have swept the floor if needed, then they mopped, scrubbed and buffed. One of the partners operated a convertomatic scrub machine which used a soap and water solution over the floor and picked up water and debris by vacuum suction. Mr. Steele followed, mopping up excess water. The floor was then buffed. Mr. Steel carried a putty knife to scrape up gum that was stuck on the floor which gum would then be placed in a sack carried for that purpose. The floor was a light off-white color and was “horrible for showing spots”. Because of the color of the floor he or his partners would have seen the gum if it were out in the aisle during the early morning hours of February 19 because they were watching the floor while they worked and the gum “would be just like a fly in buttermilk, sir, you’d see it”. There was no space under the frozen food lockers bordering the aisle where debris could collect and they could buff close to the lockers. The first time the store would have needed sweeping after it opened that day would have depended upon customer traffic. After plaintiff had fallen the butcher had told him about it and the witness was surprised because when they had finished cleaning die floor earlier that morning “it was a beautiful floor”. Bread and milk deliveries are made to the store between 6:00 and 9:00 a. m. The gum could have been brought in on one of the delivery cases or it could have come from a customer but this was only a guess as the witness had no information as to how the gum got on the floor. If anyone cleaned the store’s parking lot it was done infrequently. By deposition a Mr. Hill, a chemical engineer and part owner of a testing laboratory, testified for plaintiff. On July 23, 1968, he received the piece of gum in question and performed extensive analysis and tests upon it. These included photo-optical examination performed under a metallurgical microscope with a camera attached so that a specimen sliced from the gum could be observed and photographed; a durometer hardness test, which measures relative hardness of a semi-solid material; a coefficient of friction test with the gum and a piece of buff vinyl tile; a chemical test to determine the per cent by weight of sugar content in the gum, and a taste and odor test. He described in detail the performance and results of these tests. After exposing other pieces of gum to sunlight and dehydration for two weeks he was unable to produce a piece with the same characteristics as the one he had received. The bottom or more flat part of the gum had a small zone of diffused soil. The piece contained four color zones. The top part had soil particles to an unspecified depth and a small bit of string and hair were impressed in it. Both sides had what appeared to be oily stains. By reason of its folds the witness believed the gum had originally been placed somewhere other than on the floor after it had been chewed and, because of the accumulated surface dirt, he opined it had been on the floor some time. However, since the gum was already hard when placed on the floor the surface dirt could have accumulated before the time it was on the floor. Some of the dirt could have come from the plaintiff stepping on it but to what extent he could not as an expert say. Crystallization, oxidation and dehydration of the gum had occurred before the plaintiff stepped on it. The witness had never before tested a piece of gum. We have frequently discussed the function of a motion for directed verdict. It may not be sustained unless the evidence is insufficient to support a verdict for the party against whom it is directed. In considering its propriety the evidence, and all inferences that may reasonably be drawn therefrom, must be considered in the light most favorable to that party (Fox v. Massey-Ferguson, Inc., 206 Kan. 97, 476 P. 2d 646). And we have often stated the duty of a proprietor toward a business invitee. He is not an insurer of the safety of his business invitee and the mere fact the latter slips and falls upon foreign material present on the floor of a retail establishment does not raise an inference of negligence (Relahan v. F. W. Woolworth Co., 145 Kan. 884, 67 P. 2d 538). In Knowles v. Klase, 204 Kan. 156, 460 P. 2d 444, we iterated these guidelines: “A proprietor must use ordinary care to keep those portions of the premises which can be expected to be used by business invitees in a reasonably safe condition. If an unsafe condition is created by the proprietor or those for whom he is responsible, or if it is traceable to their actions, proof of notice of the condition is unnecessary. When a dangerous condition is neither created by the proprietor or those for whom he is responsible, nor traceable to their actions, proof of negligence with respect to a floor condition requires some showing they had actual or constructive notice of the dangerous condition. A proprietor may be charged with constructive notice of the condition if the condition existed for such length of time that the proprietor, his agents or employees should have known of it in the exercise of ordinary care.” (p. 157.) Our recent case of Elrod v. Walls, Inc., 205 Kan. 808, 473 P. 2d 12, involved a slip and fall in a supermarket. Plaintiff there fell on a lettuce leaf in a produce aisle in which other debris was observable. The condition of the lettuce leaf was variously described in such a manner as to indicate the length of time it had been on the floor. In affirming recovery for the plaintiff we emphasized the duty of a proprietor engaged in a particular type of selling thus: “When greens are sold from open bins on a self-service basis, there is the likelihood that some will fall or be dropped to the floor and if the operator chooses to sell in this way, he must do what is reasonably necessary to protect the customer from the risk of injury that mode of operation is likely to generate. “Vigilance of a storekeeper in keeping his floor clean must be commensurate with the risk involved.” (Syl. ¶¶ 4, 5.) As to probative value to be derived from the condition of the material upon which the plaintiff slipped, we stated: “This court has recognized the rule that the condition of a lettuce leaf immediately after it was slipped upon was of probative value in determining the length of time it was on the floor of the store if the evidence tends to show the condition of the lettuce as it existed before being stepped on.” (Syl. ¶ 6.) Plaintiff strenuously argues she made out a prima facie case of liability which should have been submitted to the jury for its determination. She emphasizes the testimony regarding defendants’ cleaning practices, that the offending piece of gum was dark on top and light on the bottom, it was hard and of some age, it had dirt and debris on its top side, defendants’ parking lot was poorly kept and their employees did a poor job of sweeping the last time before closing. Giving these items full weight there still was no evidence the piece of gum had been on the floor any length of time before plaintiff fell nor was there any showing defendants had knowledge of its presence, either actual or constructive, prior to the fall. Plaintiff stresses the opinion of her expert that the gum had been on the floor for some length of time. The reason given by him for this statement was the accumulation of dirt on the gum’s top surface. When the conclusion is analyzed along with the evidence it becomes apparent the opinion was based on mere conjecture and speculation. The source of the soiling or discoloration was never connected with length of time on the supermarket floor, nor for that matter with presence on the floor at all. The testimony was that the gum had initially been placed somewhere else and before the expert’s opinion would have validity, it would have to be assumed the soiling came from the floor — a fact neither shown nor legitimately to be inferred. Concededly, under the evidence, the soiling could as well have come from other sources. We simply are unable to derive probative value from the condition of the piece of gum pertaining to its length of time on the floor. Nor was there evidence of other debris on the floor so as to cast light on the length of time since it had been swept that particular day. Mere surmise or conjecture is insufficient to support a cause of action (Springfield Tent & Awning Co. v. Rice, 202 Kan. 234, 447 P. 2d 833). Plaintiff’s evidence would not have supported a verdict in her favor, hence the trial court correctly sustained defendants’ motion for directed verdict. Judgment affirmed. APPROVED BY THE COURT. Fatzer and O’Connor, J. J., dissent.	[ -47, 108, -8, -113, 24, 98, 58, -38, 101, -123, 53, 115, -19, -61, 29, 105, 117, -35, 85, 43, -45, -77, 3, -117, -10, -69, -112, -43, -80, 123, 116, -43, 76, 48, -118, -43, 102, -118, -59, 94, -118, 6, -87, -23, 125, 2, 32, 58, -90, 71, 49, 76, -21, 40, 28, -49, 106, 44, 107, 53, 112, -15, -126, -115, 125, 18, -78, 38, -98, 103, -40, 12, -112, -80, 32, -88, 114, -74, -126, 116, 63, -87, 4, 98, 98, 32, 29, -17, 108, -72, 47, 127, -99, -89, -80, 8, -119, 38, -65, -99, 104, 16, 30, 92, -9, 84, 31, 108, 11, -118, -12, -79, -113, -32, 30, -65, -17, -121, -77, 113, -52, -88, 93, 68, 114, -109, -50, -106 ]
The opinion of the court was delivered by Brewer, J.: This was an action brought by plaintiff in error, plaintiff below, to recover of defendant in error for certain rock quarried and carried away from a tract of land claimed to belong to the plaintiff. The defendant, not questioning the fact of the quarrying and removing of the rock, claimed the right to do so as owner. The case was tried by a jury, but at the close of the testimony the court instructed the jury to find for the defendant. The plaintiff’s title is founded upon a tax deed issued to John,C. Douglass on January 30, 1872, based upon a sale of May 7, 1863, for the taxes of 1862. Defendant claims title by virtue of a tax deed for the taxes of 1873, executed on June 29, 1877, to one Chas. L. Flint, and a quitclaim deed from said Flint of date March 30,1880; and also by virtue of a tax-sale certificate issued to himself on September 2, 1879, at a sale for the delinquent taxes of 1878. As there is one ruling of the district court which we think is erroneous and sufficient to compel a reversal of the judgment, we shall not attempt to notice all of the questions presented and discussed by counsel in their behalf, but shall content ourselves with reference to the one upon which a reversal is ordered, and such other matters as may become material in the further trial of .the case. First, we remark that the tax deed to plaintiff’s grantor is prima fade valid. (Morrill v. Douglass, 14 Kas. 293.) Second, even though the deed be shown to be in fact invalid, yet where possession is taken and held under it, either personally or by tenant, such possession, being under color and claim of title, is sufficient evidence of title to sustain a recovery of damages as against a mere trespasser. It is clear from the testimony that plaintiff was in possession by a tenant for a year or so, claiming to own it by virtue of this tax deed. This was unquestionably evidence tending to show title. Third, a tax deed passes the title, and this notwithstanding the owner of the land may be a minor, and therefore entitled to redeem at any time within one year after attaining majority. This, we think, is the clear import of our statutes. It will be borne in mind that a minor has no inherent right of redemption, and unless the statutes make express provisions for disability, such as those of infancy, etc., every right of redemption will cease at the expiration of the same statutory time. (Cooley on Taxation, p. 364, and cases cited in note.) If the infant’s right of redemption can be cut off at the end of three years equally with the adult’s, then the effect of the tax deed can be prescribed by the legislature in one case as well ¿is in the other. Now the form of a tax deed is that of a present conveyance of the title. (Comp. Laws 1879, p. 966, ch. 170, § 138.) It is true the deed closes with this proviso: “Subject, however, to all rights óf redemption provided by law,” but while it is subject to the right to redeem, it is clearly in terms a present conveyance of the title. Further, the section prior to the language of the former, states that the deed “shall vest in the grantee an absolute estate in fee simple,” so that we have not merely a deed purporting to convey a present estate, but the statute declaring that it shall vest an absolute estate. Still further, there is no provision for any subsequent conveyance, so that if the deed does not pass the title, it never passes by virtue of any instrument alone. That a title once transferred and vested in a grantee may be defeated by matters arising subsequent to the deed, is no anomaly. A title is often defeated by breach of a condition subsequent, and yet the possibility of such defeat does not prevent a present transfer of title. But we need not rest on these matters alone. Turning to §§ 132, 133, and 134 of said chapter 107, we find provisions for redemption after tax deed. Section 132 prescribes the amount which shall be paid, which includes the cost of the tax deed and the record of the same, and further provides that from the time of making the redemption the deed given upon the sale shall be void as against such minor, etc. Section 134 provides that the moneys received by the county treasurer for such redemption shall be paid to the one holding the tax title, on his delivery to the treasurer for the use of the person redeeming a quitclaim deed of all the title acquired under the tax sale. These provisions clearly recognize the fact that title passes by the deed, notwithstanding the owner is at the time a minor.* Wé think, therefore, that this objection to the force and effect of the tax deed under which defendant claims, upon which counsel for plaintiff in error places so much stress in his argument, cannot be sustained. Fourth, we remark that the tax deed under which defendant claims title is prima facie valid. The objections made to the form are not well taken. After the plaintiff had rested his case, defendant as a part of his evidence introduced this tax deed. Then on rebuttal plaintiff sought to introduce evidence outside the deed to impeach its validity. In respect to this the record reads as follows: “Here defendant rested his case, and plaintiff offered in rebuttal to prove by Wm. A. Allen that he was treasurer of said Jackson county in 1874, and down to 1878, and made the sale for the taxes of 1873, and that he did not post the notice for said tax sale in any place outside of his office; and that he did not post the redemption notice, that is, the notice when deeds would be due and given on said sale for 1873 tax unless sooner redeemed, in any place outside of his office for said sale for 1873 taxes. Defendant objected to this offer, on the ground that the witness was not present. Plaintiff then requested the court to postpone the hearing of the case until he could produce Wm. A. Allen’s presence, and stated that it was now about the usual time of adjournment. The court asked if Allen had been subpenaed, and was informed by plaintiff’s attorneys that he had not, and the court refused to postpone the hearing of the case until Allen could be sent for and brought into court; that Allen was not present at the trial, and, though called at the door by the sheriff, failed to respond, and that plaintiff did not produce said W. A. Allen as a witness at any time during the trial; but the court on its own motion stated that the record might show that Allen was present for the purpose of the offer, but that the testimony offered was not rebuttal, to which ruling of the court that said testimony was not rebuttal testimony, and refusing to admit it in evidence, the pláintiff at the time excepted. This closed plaintiff’s evidence.” Now upon this, counsel for defendant in error contend that the only decision made by the court was a refusal to postpone the trial until the witness Allen could be procured, and as Allen had not been subpenaed, the postponement was a mere matter of discretion, and itenot appearing that there was any abuse of discretion, error cannot be predicated of the ruling; that the defendant was no party to the statement made by the court, as to what the record might show, and as to the incompetency of the testimony; and that although the court may have erred in such statement, it was simply giving an erroneous reason for a correct decision already made. The argument in support of this is forcibly put by the counsel, and has at least the merit of plausibility. But we do not think it fair, either to the parties litigant or to the trial court, to dispose of the question in that way. Evidently the trial court at the moment thought the testimony offered was incompetent, as not rebutting, and for that reason refused the postponement which otherwise it would have granted. It was applying no balm to the sensibilities of counsel, possibly wounded by a supposed imputation of negligence in failing in due time to subpena an important witness. It was simply determining rights, and the court, believing the testimony incompetent, refused a postponement for the purpose of procuring the witness, when the only result would be the placing of the witness on the stand, the asking of the question, and the formal ruling rejecting the testimony. The only fair way, therefore, to treat it, is as a direct ruling against the competency of such testimony in rebuttal. On this question of practice.we think the court erred; that when the defendant offered the deed, while the plaintiff might object on the ground of defects apparent on the face, and might also in the discretion of the court be permitted to then introduce other testimony, yet he had no right to interrupt the course of defendant’s testimony by any counter evidence of his own of the kind subsequently offered. Any independent testimony which he had to offer making against the validity of the deed was testimony properly in rebuttal. Obviously there might be of such testimony a large amount, presenting conflicting questions of fact, and to permit the course of defendant’s testimony to be broken in úpon by this impeaching evidence, might in many cases seriously impair a clear and symmetrical presentation of defendant’s ease to the jury. It must be remembered that this testimony is not simply for the consideration of the court for the 'purpose of determining the admissibility of the deed, but presents substantial questions of fact upon which under proper instructions the jury are to determine the validity of the deed. Fifth, a final matter is in reference to a sale certificate. This sale certificate was issued directly to the defendant, upon a purchase made by him at the tax sale.. This certificate he held at the time of the trespasses complained of, while in reference to the title by the tax deed referred to in the last paragraph, it should be noticed that defendant obtained that title by quitclaim from the original tax grantee only after the trespass complained of had been committed. The sale certificate held by defendant had not ripened into a tax deed, and the question is whether that sale certificate furnished any defense. As heretofore stated, the trespasses complained of consisted in quarrying and removing rock, something which diminished the value of the realty, a matter of waste. It was held in the case of Stebbins v. Guthrie, 4 Kas. 353, that a sale certificate was sufficient title to invoke the protection of the oecupying-claimant act. From that decision we have no disposition to dissent; but there is a portion of the syllabus, as well as of the opinion, which, taken as a general statement, cannot be upheld'. It is there said that a purchaser at a tax sale becomes the owner at the time of the purchase,'his title being only defeasible by re demption. Now if by this is meant that the title passes at the time of the sale, and that the. purchaser is then invested with all the rights and privileges of ownership, the language is too broad. At the time'of the sale, the purchaser acquires an interest which ripens into a title only on the execution of a deed. The title passes by the deed; till then, it remains with the original owner. This is manifest from the express language of the sections of the statute heretofore referred to. It is also the general voice of the authorities. In.Cooley on Taxation, p. 368, ¶9, the author says: “ The purchaser has no title to the land until the time for redemption has expired. He has consequently no constructive possession of the premises, and no more right to go upon and make use of the same than any stranger to the. title would have. His entry upon the premises would be a trespass upon the possession, actual or constructive, of the owner, who might recover against him for any injury committed.” See also Lightner v. Mooney, 10 Watts, 407; Gault’s Appeal, 33 Pa. St. 94; Shalemiller v. McCarty, 55 id. 186. This is in harmony with the rule prevailing in many states in respect to sales on execution, the judgment debtor being entitled to a year or more in which to redeem, and while such right continues he holds the possession and legal title. While the sale certificate may protect a party in making improvements, for so the statute expressly declares, yet it will not protect him in committing waste. Therefore the sale certificate of defendant was no defense. We see nothing else requiring notice. The judgment will be reversed, and the case remanded for a new trial. All the Justices concurring.	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The opinion of the court was delivered by Horton, C. J.: The facts in this case are substantially these: In January, 1881, George Hoisington, as sheriff of Dickinson county, levied upon one roan horse, one dark sorrel-chestnut horse, and two mules, as the property of John Brakey, the husband of Jane Brakey, under an execution in favor of C. H. and L. J. McCormick. Soon thereafter Jane Brakey replevied from Hoisington all the property, she claiming title thereto. This case was tried at the October term of the court for 1881, and resulted in a judgment for Hoisington. Within a few days after the levy above mentioned, Hoisington, as sheriff, also levied upon one cream-colored mare and one white mare as the property of John Brakey, under executions issued in favor of N. C. Thompson, A. "Van Patten and Peter E. Willett. Jane Brakey at once replevied the animals so levied upon, and the case was tried at the October term of the court for 1883. In this case the jury returned a verdict that Jane Brakey was the owner and entitled to immediate possession of the property in controversy, and that the same was wrongfully detained by Hoisington. Judgment was entered thereon, and Hoisington brings the ca'se here. The depositions taken in the first case were read in both cases. Jane Bra key’s evidence was given in the form of a deposition, in which she testified she was married to John Brakey in 1855, in Lower Canada, county of Missisce; that at the time she married she had six cows, seven sheep, furniture and bedding necessary for housekeeping, and three hundred dollars in money; that the stock and money were received by inheritance from her father; that after her marriage she remained in Canada fifteen years; that she did not carry on and conduct any separate or individual business whilst in Canada; that she went to Illinois, where she lived about ten years; that in 1869 she earned one hundred dollars by working out, and in 1872 received from her father’s estate $550; that after she came to the United States she did business in her own name; that she loaned her money to her husband, John Brakey; that she continued to loan it'to him until her children got old enough to use it; that after she and her family came to Kansas, in 1878, her husband paid her $2,000 that he owed to her; that she put this money into stock; that the property in controversy in the two suits was three horses, one mare, and a span of mules. In each case it was the contention of Hoisington that the transfer of the money by John Brakey to his wife was not a bona fide payment of a debt, but was in fact a device only to place his property out of the reach of his creditors; and that the claim of Jane Brakey to the stock was fraudulent, and merely set up to cheat and defraud her husband’s creditors. In each case he introduced evidence to weaken and contradict the evidence of Jane Brakey, and in the case at bar he offered in evidence the pleadings, instructions, special findings, verdict and judgment in the case tried at the October term of the court for 1881, wherein Jane Brakey was plaintiff and himself defendant, and in which he recovered judgment. To the introduction of this evidence, Jane Brakey objected for the following reasons: that said papers did not tend to prove any issue in this case; that while the parties were nominally the same, the defendant, George Hoisington, was not the real party, but stood in a representative capacity as a mere stockholder; that the creditors whose executions he held were the real parties, and were not the same in both cases; and that the property in controversy in the second case was not identical but different from that in controversy in the first case. The court sustained the objection and excluded the evidence upon the ground that the defendant was not, but the creditors were, the real parties, and hence that the parties in the cases were not the same. This ruling is complained of. The ground upon which the court excluded this evidence is not tenable. In both actions the court, upon application of Hoisington and of the judgment creditors in whose favor the executions were issued, might have permitted the latter to be substituted as the defendants, (Code, § 45;) but this was not done. The judgment creditors made no application in that behalf. Hoisington was therefore not only the actual, but he was the real party defendant in each case. He was named the defendant. He controlled the action, and was personally responsible for any judgment that might have been rendered against him. The question therefore arises whether the exclusion of this evidence can be sustained upon any other ground. In Smith v. Auld, ante, p. 266, Mr. Justice Brewer, speaking for this court, said: “The whole philosophy of the doctrine of res adjudícala is summed up in the simple statement that a matter once decided is finally decided; and all the learning that has been bestowed and all the rules that have been laid down, have been for the purpose of enforcing that one proposition. One rule fully established is, that you may examine the entire record of the prior action in order to determine what was in fact adjudicated. The inquiry is not limited to the mere formal judgment. It extends to the pleadings, the verdict, or the findings, and the scope and meaning of the judgment is often interpreted by the pleadings, verdict, or findings. Indeed, to determine the matters which were adjudicated, not only may you look to the entire record, but also in many instances you may resort to parol testimony.” In this case, we ascertain from the record of the first case, and especially from the instructions and special findings of fact, that it was established and settled in the first case that the $2,000 transferred by John Brakey to his wife, Jane Brakey, shortly after their removal to this state, was done with the intention by them to place it beyond the reach of the creditors of the husband, and that the stock purchased with this money — the property in controversy in both cases — was the property of John Brakey, and held in the name of Jane Brakey, his wife, to defraud the creditors of the husband. The principal question at issue in both cases was identically the same. The parties in both cases being identical, and the questions involved being the same, and the court having had full jurisdiction over the parties and the subject-matter, the judgment in the first case was conclusive, not only as to the identical property then involved, but. as to all further litigation between the same parties upon the same subject-matter, though the property itself in controversy in the last case was different from that in the former. (Beloit v. Morgan, 7 Wall. 621. See also Smith v. Auld, supra; Wells’s Res Adjudicata, §§ 248, 254; Perkins v. Walker, 19 Vt. 145; Bouchand v. Diaz, 3 Den. 243; Gardner v. Bugby, 3 Cow. 120; Bent v. Stemburg, 4 id. 559; Doughty v. Brown, 4 Comst. 75; French v. Howard, 14 Ind. 455.) Jane Brakey attempted to support both actions by the same evidence. The defense was precisely the same in both actions, and the issues in the two cases were precisely alike, except that the petitions mentioned different animals. Therefore, as it appears from the record of the first suit that the material issue in controversy in the second suit was necessarily and actually litigated and decided in the first suit, the court erred in excluding the evidence offered. In Railroad Company v. Comm’rs of Jefferson Co., 12 Kas. 127, to which we are referred by counsel for Jane Brakey, the plaintiff was not a party to the decree set up as a defense, neither did it claim under any one who was such a party; further, the decree set up in the answer as a defense was rendered pro confesso in an action between two parties whose interests were adverse to the plaintiff’s. The judgment of the district court must be reversed, and the cause remanded for a new trial. All the Justices concurring.	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The opinion of the court was delivered by Hatcher, C.: This is an appeal from a summary judgment in a replevin action. Summary judgment was rendered against the plaintiff, the State Bank of Burden, and on a motion to amend the judgment it submitted numerous affidavits which are in the record on appeal. The appellees object to the use of these affidavits in determining the propriety of the summary judgment. The appellees suggest that in determining the validity of the summary judgment this court should limit its consideration to the matters which were before the trial court when it entered the judgment in the first instance. We are inclined to agree. The affidavits submitted on the motion to amend the judgment should be considered only on the contention that the court abused its discretion in not amending the judgment, if we should reach such a question. It would appear to be conceded on appeal that one of the defendants, Harold A. Krug, was engaged in the welding business and in connection therewith made and sold farm and stock trailers. All other facts must be gleaned from the amended petition, the motion and the affidavit accompanying the motion for judgment. Unfortunately it is necessary that we present the instruments in some detail. On January 22, 1969, the plaintiff filed its petition in replevin and on January 30, filed an amended petition. It is the allegations of this petition that we are to consider here. The amended petition may be summarized in part: On December 20, 1966, defendant Harold A. Krug and Deloris V. Krug executed a security agreement and financing statement along with notes. The financing statement was duly recorded in the office of the Secretary of State of Kansas on December 27, 1966. The notes have been renewed and the security indicated in said financing statement is still in full force and effect. The plaintiff has a valid lien on all the security given therein. On or about November 16, 1967, the Augusta State Bank filed a financing statement listing merely the inventory of defendant Harold A. Krug in the office of the Secretary of State at Topeka, Kansas, and later, on the 28th day of March, 1968, again filed a financing statement listing equipment; that both the items indicated in the financing statements are inferior to the lien of plaintiff and plaintiffs lien on said property is prior to any Hen of the defendant, Augusta State Bank. It was alleged: “4. That on or about November 15, 1968, defendant Paul Mann, Chairman of the Board of August State Bank, came to the premises of defendant Harold A. Krug and took two trailers without the consent of defendant Harold A. Krug, described as follows: 1 — 1968 four horse trader, ID#113169; 1 — 1968 nine foot trailer; that plaintiff had a prior lien on said trailers and Paul Mann was so advised by defendant Harold A. Krug; that notwithstanding said advices, defendant Paul Mann forcefully took said trailers and either has said trailers in his possession or has wrongfully sold same. Plaintiff states that an order of replevin should issue forthwith on said trailers to Paul Mann and the Augusta State Bank or in lieu thereof, said Paul Mann and Augusta State Bank pay the sum of $3500.00, the value of said property. “5. That the above described property was and is a part of the inventory of defendant, Harold A. Krug and as such, entitles plaintiff to a first and prior lien thereon.” (Emphasis supplied.) Attached to plaintiff’s petition as exhibits were the security agreement and the financing statement presented to the Secretary of State for filing pursuant to the provisions of the Commercial Code. Both the security agreement and the financing statement described the property covered as follows: “(a) All inventory of Debtor, now owned or hereafter acquired; “(b) All contract rights of Debtor, now existing or hereafter arising; “(c) All accounts receivable of Debtor, now existing or hereafter arising; “(d) All instruments, documents of title, policies and certificates of insurance, securities, chattel paper, deposits, cash or other property owned by Debtor or in which it has an interest which are now or may hereafter be in possession of Secured Party; “(e) Proceeds and products of the foregoing.” The defendants filed an entry of appearance and redelivery bond. These items are not material here. The defendants then moved the court for an order dismissing the action because plaintiff’s petition fails to state a claim upon which relief could be granted. The grounds of said motion were as follows: “1. Plaintiff’s petition fails to allege facts entitling it by law to possession of the property sought to be replevied. Plaintiff’s petition fails to state that plaintiff had perfected a security interest in either of the trailers described, or concerning which a description is attempted, in said petition, said trailers being vehicles subject to the laws of the state of Kansas relating to the registration of motor vehicles. (K. S. A. 8-126, et seq.) “2. In order for plaintiff to have perfected a security interest in such vehicles, it was necessary that plaintiff have its lien shown upon the title certificates to said vehicles pursuant to K. S. A. 8-135 and for the debtor to have rights in said vehicles to which a security interest could attach, as provided in K. S. A. 84-9-303 and 84-9-204. “4. As to the second trailer described or concerning which a description is attempted in plaintiff’s petition, it is impossible to identify the same because of the inadequacy of the description, and for that reason plaintiff’s petition fails to state a claim with regard thereto upon which relief can be granted.” Attached to the motion to dismiss was an affidavit which read: “Ronald G. Maddy, being first duly sworn, upon oath states: “1. He is a Vice-President of the Augusta State Bank, Augusta, Kansas, and he has personal knowledge of the matters hereinafter set forth. “2. He has made an investigation with regard to the certificate of title to a vehicle described as a Burden trailer, Tr. BH, Identification No. 113169, by inquiry to the Superintendent of the Vehicle Department, Kansas State Highway Commission, and he has secured from said office copies of the application for Kansas Title Certificate 13169MX to said vehicle, as the same appears upon the records of said office, showing said certificate to have been issued in the name of Harold Krug on July 15, 1968. Said title certificate issued upon said date shows no lienholder thereon. Affiant has also secured from the same source copies of an application for Mortgage Certificate of Title to the same vehicle, as the same appears upon the records of said office, showing a certificate of title bearing the same number as the one described above to have been issued in the name of Harold Krug on November 15, 1968, and showing a lien on said vehicle in the name of the State Bank of Burden, Burden, Kansas. Affiant has ascertained that no mortgage tide certificate upon said vehicle was issued prior to November 15,1968. “3. As the officer and agent of the Augusta State Bank, affiant was present at and assisted in the taking into possession of die above-described trailer and another trailer by said bank at Burden, Kansas, and the date upon which possession of said trailers was taken by said bank was more than two months prior to November 15, 1968, being on or about September 14, 1968.” As disclosed by tbe record, the foregoing is all that the trial court had before it except the motion of Mrs. Harold A. Krug to intervene. The motion was not passed on by the trial court and is not before us for consideration. The trial court considered the motion to dismiss and the affidavit as a motion for summary judgment and concluded: “The Court Finds that defendants Augusta State Bank and Paul Mann have attached to their motion to dismiss an affidavit and have requested that the Court consider certain matters outside the pleadings. The Court finds that there is no reason to exclude matters outside the pleadings in the consideration of the motion of defendants and that the motion should be treated as one for summary judgment and disposed of as provided in K. S. A. 60-256. “The Court Further Finds, having considered the motion of defendants and other matters presented in connection therewith, that the motion of defendants to dismiss this action should be sustained. “The Court Finds that there is no dispute between the parties or genuine issue as to any material fact. The Court finds that the plaintiff failed to perfect a security interest in the subject matter of this action which would give plaintiff priority over the claims of creditors holding perfected security interests in said subject matter. The Court further finds that defendant Augusta State Bank is the holder of a perfected security interest in said subject matter and that, as against defendant Augusta State Bank, plaintiff is not entitled to possession of said property. “The Court Further Finds that the petition of plaintiff does not sufficiently describe the second item of property claimed, to-wit, one 1968 nine-foot trailer, to identify the same, the petition does not state a claim with regard thereto upon which relief can be granted.” The plaintiff has appealed. The appellant makes two principal contentions which we summarize: (1) It was error for the court to award summary judgment when the amended petition shows on its face that the trailers involved were inventory, a material issue of fact in the case, and specifically exempted from the requirement that liens on vehicles must be included on the title certificates (K. S. A. 1968 Supp. 84-9-302 [3] [c]). (2) It was error for the court to dismiss plaintiff’s petition with prejudice as to the second trailer because of an inadequate description. We are forced to agree with appellant. The appellant proceeded upon the single theory that the trailers were inventory of the manufacturer and not required to be registered under the Motor Vehicle Registration Act (K. S. A. 8-126), and the lien was perfected by filing under the provisions of the Uniform Commercial Code. It relies on K. S. A. 1970 Supp. 84-9-302 which provides insofar as material here: “(3) A security interest in “(c) a vehicle (except a vehicle held as inventory for sale) subject to a statute of this state which requires indication on a certificate of title or a duplicate thereof of such security interests in such vehicle: “Can be perfected only by presentation, for the purpose of such registration or such filing or such indication, of the documents appropriate under any such statute to the public official appropriate under any such statute and tender of the required fee to or acceptance of the documents by such public official. Such presentation and tender or acceptance shall have the same effect under this article as filing under this article, and such perfection shall have the same effect under this article as perfection by filing under this article.” (Emphasis supplied.) It would not be well for us to speculate on the statutes or legal principles applicable until the factual issues are determined. The amended petition specially alleged “that the above described property [the two trailers] was and is a part of the inventory of Harold A. Krug.” The affidavit filed by appellees in no way refutes this allegation. It would appear that all of the issues of fact raised by appellant’s petition were left in dispute. It is not definite whether defendant Krug was a manufacturer of trailers or seller or both. These facts would reflect on the question of the necessity for registration. Certainly there were no facts before the trial court from which it could determine whether the trailers were inventory in the possession of Krug at the time the security agreement was entered into or any time. This question was a material issue. A summary judgment is not proper where material factual issues remain. One of our later pronouncements of this question will be found in Lawrence v. Deemy, 204 Kan. 299, 461 P. 2d 770, where we stated: “Generally before a summary [judgment] may be granted, the record before the court must show conclusively that there remains no genuine issue as to a material fact, and that the moving party is entitled to judgment as a matter of law. A mere surmise or belief on the part of the trial court, no matter how reasonable, that a party cannot prevail upon a trial will not warrant a summary judgment if there remains a dispute as to a material fact which is not clearly shown to be sham, frivolous, or so unsubstantial that it would be futile to try the case. (Knowles v. Klase, 204 Kan. 156, 460 P. 2d 444, Green v. Kaesler-Allen Lumber Co., 197 Kan. 788, 420 P. 2d 1019.) . . .” (p. 301.) We are, also, forced to disagree with the trial court’s conclusion that the petition does not sufficiently describe the property claimed, i. e., one 1968 nine-foot trailer. The property to be replevied must be so sufficiently described to enable the officer serving the process to identify it. The description must also be sufficient to enable the defendant to know with what property he is charged with detaining. (77 C. J. S., Replevin, § 149, p. 103.) The amount of detail in the description depends on the nature of the property. Cattle being numerous, a cow would require a more detailed description than a farm trailer. Circumstances might also make a difference, such as whether the property was standing alone or commingled with other property of the same character. In the case before us two trailers were taken from Harold Krug by the Augusta State Bank. It is not to be assumed that the bank was in the trailer sales business or operating trailers. We will not assume that the bank had in its possession more than one 1968 nine-foot trailer. We must conclude that the description was sufficient, under the circumstances, to enable the officer serving the process to identify it and the defendants must have known with what property they were charged with detaining. If the defendants were not so informed, a motion for a definite statement would have been the better practice. The judgment is reversed with instructions to the trial court to set aside the summary judgment and proceed with the trial of the issues raised by plaintiff’s petition. APPROVED BY THE COURT.	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The opinion of the court was delivered by Valentine, J.: The plaintiff in error, the Missouri Pacific railway company, was defendant in the court below, and the defendants in error, M. Stults and George Neiswender, partners doing business under the firm-name and style of Stults .& Neiswender, were plaintiffs in the court below. The principal question involved in the case in the court below was, whether the defendant entered into a special contract with the plaintiffs to furnish them two stock cars of certain dimensions, at Louisburg, Miami county, Kansas, on March 13, 1883. Judgment was rendered in favor of the plaintiffs below and against the defendant below, and the defendant below now seeks to have such judgment reversed. We think the plaintiffs below tried their case upon a wrong theory — upon the theory that the defendant below was liable for everything said or done by any of its employés, whether within the line of their particular duties or not. The plaintiffs below introduced evidence tending to show that the plaintiffs entered into a contract with the local station agent of the railway company at Paola, Kansas, to furnish the said two cars to the plaintiffs at Louisburg, Kansas. The plaintiffs also introduced evidence of the oral statements of the station agent at Paola, to prove that he had ordered the cars by telegraph, to be furnished by the station agent at Louisburg. The plaintiffs also introduced evidence of the oral statements of the supposed agent at Louisburg, to prove that he was in fact the agent of the railway company at Louisburg. The plaintiffs also introduced evidence showing the oral statements of the conductor, engineer, fireman and brakemen on a certain train belonging to the de fendant, to prove that the cars might have been furnished by the railway company to the plaintiffs just as well as not. All the foregoing evidence was incompetent. It cannot be presumed or supposed, in the absence of evidence, that a local station agent along the line of a railway has any general authority to contract for furnishing cars to shippers at other stations than his own. (Wood v. C. M. & St. P. Rly. Co., 59 Iowa, 196; same case, 6 Am. & Eng. Rly. Cases, 314.) No evidence was introduced tending to prove that the station agent at Paola had any such authority; but on the contrary, evidence was introduced showing that he had no such authority. Nor can agency be proved by proof of the oral declarations of the supposed' agent himself; and all the other oral declarations and statements of the various witnesses, not made under oath and not within the lines of their particular duties, were incompetent. Railway companies are not responsible for the declarations or admissions of any of their servants beyond the immediate sphere of their agency and during the transaction of the business in which they are employed. (Greenl. Ev., §114a.) The judgment of the court below will be reversed, and the cause remanded for a new trial. All the Justices concurring.	[ -80, 110, -23, -81, 10, 96, 32, -102, 99, -31, 37, 83, -51, -37, 0, 127, -18, 61, -16, 58, 86, -109, 7, 35, -46, -109, -13, -51, -79, 73, 116, -58, 77, 32, 74, -43, -26, -64, 69, 28, -50, 36, -87, -22, -39, 80, 52, 120, 86, 71, 113, -114, -13, 42, 28, -61, 41, 62, 107, 41, -32, 113, -78, -57, 125, 6, 1, 36, -104, 7, 72, 63, -104, 53, 3, -23, 115, -90, -122, -12, 105, -71, 8, -26, 99, 33, 21, -113, -4, -72, 46, -5, -113, -90, 52, 24, -93, 13, -74, -99, 85, 18, 7, -2, -26, 29, 25, 60, 3, -117, -78, -109, 63, 118, -102, 3, -53, -125, 50, 112, -56, 48, 93, 71, 58, -101, -97, -76 ]
The opinion of the court was delivered by Horton, C. J.: I. It is insisted that the information is insufficient, in that it fails to state with certainty the time the fatal assault was made, the time when the fatal wound was inflicted, or when the same caused death. Further, it is insisted that the information does not- fix or state a day or year upon which the alleged offense was committed. The information alleges that whatever was done unto the deceased was “on or about the 11th day of August, 1882,” and that “the said August Bendrup then and there died.” In view of the provisions of our criminal code, the words “or about” have no meaning in the information, and may properly be treated as surplusage. They could have made no difference in the proof required, and could in no way have prejudiced the defendant’s rights. (Crim. Code, §§ 105, 110; The State v. Barnett, 3 Kas. 250; The State v. Tuller, 34 Conn. 280; Hampton v. The State, 8 Ind. 336; The People v. Littlefield, 5 Cal. 355; The People v. Kelly, 6 id. 210; Forrell v. The State, 45 Ind. 371; The State v. Elliott, 34 Tex. 148.) Treating the words “or about” as mere surplusage, the information charges the assault was made on August 11, 1882, that the fatal wound was inflicted on August 11, 1882, and that the deceased died on August 11, 1882. II. It is contended that the information states and describes three acts or things done by the defendant, and three only, and that these acts or things are separately stated and have no connection with each other; that the three acts or things stated are, “ the defendant then and there held in his hand a large knife or dirk,” and “ then and there did strike at and upon the body of one August Bendrup,” and “did then and there . . . cut and stab the said August Bendrup in the abdomen.” The information in fact charges, among other things, that the defendant, “on August 11, 1882, did willfully, deliberately, premeditatedly, and with malice aforethought, cut and stab the said August Bendrup in the abdomen, thereby inflicting upon the body of the said August Bendrup one certain mortal wound, whereof he, the said August Bendrup, then and there died;” and then closes with the charge “that the defendant, on August 11,1882, at and within the county of Chautauqua and state of Kansas, did willfully, feloniously, deliberately and premeditatedly kill and murder the said August Bendrup, . . . and is therefore guilty of the offense of murder in the first degree.” The information is somewhat awkwardly drawn, and omits, as in the case of Smith v. The State, 1 Kas. 365, to charge the intent to kill or murder, except in the closing part; yet we think the language of the information, properly construed, charges that the cutting and stabbing of Bendrup was done by the defendant with a deadly weapon, to wit, a large knife or dirk, held in his hand; that the same was done willfully, deliberately, premeditatedly, and with malice aforethought; that thereby the defendant inflicted upon Bendrup one mortal wound, of which mortal wound Bendrup died; and that the defendant “did willfully, feloniously, deliberately and premeditatedly kill and murder the said Bendrup.” Therefore, in our opinion, the information is sufficient to sustain the charge of murder in the second degree. (Smith v. The State, supra; The State v. Brown, 21 Kas. 38.) Especially do we consider the information sufficient against the objections presented, in view of the fact that it was not attacked by motion to quash, or otherwise, until after the return of the verdict of the jury. (Crim. Code, § 277; The State v. Jackson, 27 Kas. 582.) There is no claim before us that the evidence in the trial court did not sustain the'verdict, and no exceptions are presented to the charge of the trial court. We are not to set aside the information for any surplusage, or for any other defect or imperfection which did not tend to prejudice the substantial rights of the defendant upon the merits. If the offense charged in the information is stated with such a degree of certainty that the court could pronounce judgment upon conviction according to the right of the case, we are not now to interfere. (Crim. Code, §§109, 110.) Nor ought we, at this stage of the case, to give such a narrow and technical construction to the language used in the information as to release the defendant, if' the facts therein stated in their ordinary acceptation constitute murder in the second degree. “Our criminal code has wisely discarded in pleading many of the old forms of expression and technical requirements which only served to unlock the doors of prisons, and allow the guilty to go free.” (Hintz v. State, 17 N. W. Rep. 639. See also The State v. McCord, 8 Kas. 232; The State v. Totter, 15 id. 302; The State v. Stackhouse, 24 id. 445; The State v. Bridges, 29 id. 138; The State v. Fooks, 29 id. 425; The State v. Yordi, 30 id. 221.) 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 Schroeder, J.: This is a negligence action brought by the plaintiff to recover for injuries sustained as a result of a fall from an inadequately lighted step while on the defendants’ premises The trial court sustained a motion for summary judgment and appeal has been duly perfected. The controlling question on appeal is whether the state of the record is sufficient to warrant the disposition of the case by a motion for summary judgment. At the time the motion for summary judgment was interposed the pleadings were on file, pretrial had been conducted and the deposition of the plaintiff had been taken. At all times material hereto the defendants owned and, together with four of their children, occupied the premises next door to the plaintiff. During the early part of the month of December, 1966, a party was planned for Patsy Kuntz, the eldest daughter of the defendants, to be held at the Kuntz home on the evening of December 14, 1966. The plaintiff alleged in her petition that she had previously been invited by the defendant, Mary E. Kuntz, to attend a “Stanley Party” on that evening, when she was caused to step and fall off the porch stairs onto an open and unprotected area and across a framework of metal chair backs stuck into the ground alongside and in front of the residence, by reason of the negligent conduct of the defendants in failing properly to protect, light and guard the same and in failing to warn the plaintiff of the dangers and hazards thereof. As a result the plaintiff sustained personal injuries. When the plaintiff was asked in her deposition to explain what a “Stanley Party” was like, she said: “A. Oh, they have all kinds of things they want to sell, you know, even sprays for the house and cologne and different stuff of that nature. “Q. Well, this is held as a little social gathering? “A. Yes. “Q. In someone’s home, is that correct? “A. Yes, that’s right. "Q. And someone — and this is the way someone sells goods? “A. Yes. They insisted. “Q. And the person who has the party may reap some kind of benefit from it? “A. Yes, they get a little extra bonus. “Q. And they invite their friends in? “A. And they also get a bonus if they get somebody else to give one of the parties.” In her deposition the plaintiff testified that a week or so before the time for the party, the defendants’ daughters — the two younger girls, Mary, age 9, and Kathleen, age 13 — expressly invited the plaintiff to attend the party. Again on the day of the party the two younger girls came to Mrs. Harter’s home and insisted on her coming to the party. Mrs. Harter went to the defendants’ home at approximately 7 o’clock. It was after dark. When she arrived at the party she was served refreshments, visited a bit, was shown the merchandise, made some purchases, and was the first to leave the party about 9 o’clock. When the plaintiff left tire party Kathleen accompanied her through the front door which opened onto a covered porch across the front of the house. The steps leading off the porch were about four in number, there was no hand rail, and at the foot of the steps was a concrete platform. As the plaintiff stepped off the platform she fell. The large porch light, which ordinarily illuminated the area, had been removed and replaced with a connection to run a string of small colored Christmas lights across the front of the porch. A large evergreen tree cast a shadow across the area where the plaintiff fell. The motion alleged the deposition of the plaintiff and the admissions of the parties left no question concerning any material fact relative to the plaintiff’s relationship to the defendants while on their premises in dispute, in that the plaintiff’s visit was purely' social. At the pretrial conference the parties announced the factual issues in the case to be the negligence of the defendants, if any, and the contributory negligence of the plaintiff, if any. The plaintiff maintained that the defendants failed to keep their property in a reasonably safe condition in that they did not maintain sufficient lighting. The defendants maintained that the plaintiff herself refused aid and assistance and failed to keep a proper lookout for her own safety. A further factual issue was the status of the plaintiff upon the defendants’ property — whether she was “a social guest or a business invitee or licensee.” The appellant contends the trial court erred in finding the plaintiff’s relationship to the defendants while upon the defendants’ premises to be purely social — thereby making her legal status that of a licensee. The appellant argues she was a business invitee as to the appellees, relying upon Graham v. Loper Electric Co., 192 Kan. 558, 389 P. 2d 750; and Lemon v. Busey, 204 Kan. 119, 461 P. 2d 145. A person’s status when entering upon the property of another by invitation is determined by the purpose for which the person comes upon the property. (Lemon v. Busey, supra.) To support the appellant’s position that she was a business invitee, counsel for the appellant in his brief argues concerning the “Stanley Party:” “Such a merchandising plan is not new. However, it has recently gained considerable popularity and continues to do so. It has become big business. Large organizations are using this method or merchandising solely for the selling of household goods, cookware, toiletries, cosmetics, clothing and many other articles. Many persons are engaged on a full time basis to assist hostesses to arrange ‘parties’ where their wares may be displayed and hopefully sold to the persons invited to the party. “This, appellant urges, is business, big business, and not social in purpose. The fact that it is held in one’s home, usually in the evening hours and in a relaxed or informal atmosphere does not detract from the real and true reason for the ‘party.’ “The motive of the company representative in assisting the host in arranging the party certainly would bear the marks of having a business purpose. “The prime purpose of the host in having the party was to ‘obtain bonuses,’ again more of a business purpose, and, appellant submits the purpose in her being there was to view the merchandise for sale for the purpose of enticing her to make a purchase, which she did.” The evidence ultimately presented at the trial of the case may confirm the appellant’s position as to the business nature of a “Stanley Party,” and the purpose for which the appellant attended, but the record at this point in the proceeding is not sufficient to establish these facts. Certainly the court cannot take judicial notice of these facts. In other words, a factual issue as to the status of the appellant on the appellees’ premises remains to be determined. In Brick v. City of Wichita, 195 Kan. 206, 403 P. 2d 964, it was held: “Where a motion for summary judgment is sought, the provisions of K. S. A. 60-256 (c) authorize the judgment to be rendered forthwith if 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 a judgment as a matter of law.” (Syl. ¶ 1.) While the appellees concede the appellant is entitled to have her claim submitted to a jury if she was their “invitee” at the time of the injury, they argue that a business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land, citing Lemon v. Busey, supra. While the appellees concede they were unquestionably possessors of the land within the meaning of the foregoing rule, it is argued the appellant was invited to enter the appellees’ land by their daughters, who, by the appellant’s own testimony, had organized and hosted the party, invited the appellant, and received whatever “bonus,” if any, was distributed by the selling company. They argue there is no evidence that the appellees, or either of them, had any connection whatsoever, either direct or indirect, with the party other than allowing their daughters the use of their residence. The appellees contend they simply had no dealings, business or otherwise, with the appellant in this matter, and as to them the appellant could not have been a “business visitor” as defined in our cases. The appellees’ assumption from the appellant’s deposition that the daughters of the appellees had organized and hosted the party is too broad. At the pretrial, and made a part of the pretrial order, the appellant announced she would use as witnesses herself, her husband, five members of the Kuntz family (naming them) including the appellees, and Dr. A. J. Wray. The appellees announced they would use all of the same witnesses. The appellees argue they took the appellant’s deposition and no further discovery was conducted by either party. They contend at no time did the appellant request or conduct any further discovery or file any affidavits in opposition to the appellees’ motion for summary judgment. On this point the appellees conclude: “Having made no attempt to oppose defendants’ Motion with additional evidence, plaintiff cannot now complain, and must be bound by the evidence in tire Record on Appeal which contains no genuine issue of a material fact.” We fail to see merit in the foregoing argument of the appellees. It has heretofore been said that a motion for summary judgment cannot be converted into a trial by affidavits. When there is a good faith dispute over the facts the parties must be afforded a trial at which the evidence is presented and the live facts determined. (Brick v. City of Wichita, supra.) In view of the allegations of the petition, and the issues framed at the pretrial conference, we have carefully examined the appellant’s testimony as recorded in her deposition to determine whether the appellant has in any manner negated the charges made by her. At no time during the taking of the deposition was any inquiry made of the appellant as to her purpose in attending the party; nor was there inquiry as to the presence of Mr. and Mrs. Kuntz (the appellees) at the party. No inquiry was made as to any au thorization or directive given by the appellees to their daughters, who were minors, concerning the party. The deposition is devoid of any such testimony, but it is conceded the appellees possessed the premises upon which the party was conducted. That being true, the trial court had before it material allegations set forth in the petition, controverted by the appellees’ answer, which were followed by a pretrial order delineating the factual issues. In proceeding on a motion for summary judgment K. S. A. 60-256 (c) provides in pertinent part: ". . . The adverse party prior to the day of hearings may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, ... 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 a judgment as a matter of law. . . .” (Emphasis added.) Since the allegations of the appellant’s petition, and the issues defined in the pretrial order, were not negated by the deposition of the appellant’s testimony, and the motion for summary judgment was not supported by any other testimony, there would be no occasion for the appellant to file an affidavit. On similar facts a motion for summary judgment was held improper in Horvath v. Fisher Foods, Inc., 28 Ohio Op. 2d 113, 93 Ohio L. Ab. 182, 194 N. E. 2d 452, 99 A. L. R. 2d 721. Here the petition named Jack J. Kuntz and Mary E. Kuntz (appellees), the father and mother of Mary, Kathleen and Patsy, as the defendants and charged them with negligence. The pretrial order stated as one of the factual issues to be determined at the trial the negligence of the defendants, if any, in failing to maintain their property in a reasonably safe condition in that they did not provide sufficient lighting. The deposition of the appellant, in view of the foregoing discussion, would not preclude evidence at the trial showing that the “Stanley Party” was conducted as a family venture for which the appellees would be responsible. But it is unnecessary to speculate as to what course the evidence on this point may eventually take; needless to say, the factual issue is still undetermined. Undoubtedly at the trial testimony of the members of the Kuntz family, whom the appellant named as witnesses at the pretrial conference, will supply the testimony to resolve this issue. On the record here presented a motion for summary judgment is unwarranted. The judgment of the lower court is reversed.	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The opinion of the court was delivered by Brewer, J.: This was an action for specific performance. The facts as found by the jury, are briefly these: In June, 1877, one Jeremiah Baldwin owned the land. He then made a parol contract with plaintiff, that if she would come and live with and take care of him till his death, he would give her his property after he was done with it. She did live with and take care of him till his death, in 1878. She had no other possession than as living with him, the jury saying that the only way in which he delivered any possession was by telling her that she would find the receiver’s receipt in the clock, and that the patent was in Concordia. After his death she continued in exclusive possession and made some slight improvements, the value of which was more than made up to her in the value of the use and occupation. There was no agreement for the making of a will by him, and no other contract than as specified. Defendants claim by inheritance from Baldwin. Was plaintiff entitled to a decree of specific performance? The testimony is not preserved; so we only know the facts as found by the jury as above stated. The contract, being one in parol, was obviously under the statute of frauds nonenforceable. Three matters are presented, to take the case out of the statute: First, the improvements. To this we reply, that as these were made after Baldwin’s death and without authority from his heirs, they can have no effect. If the title did not pass at Baldwin’s death, it has not been transferred by any subsequent matters. Second, delivery of possession. But to take a parol contract for the sale of land out of the statute of frauds by reason of a delivery of possession, such possession must be notorious, exclusive, and obviously in pursuance of the contract. (Browne on Statute of Frauds, §§473, 474, 476.) Coming to live with the owner on his land answers neither demand. Third, payment of purchase-price by performance of all the conditions of the contract. In reference to this the general rule is, that payment of the purchase-price does not take such a contract out of the reach of the statute of frauds. (Edwards v. Fry, 9 Kas. 423; Fry on Specific Performance, § 403; Browne on Statute of Frauds, §463.) This is upon the ground that the money can be recovered back by action, and so no fraud will be accomplished if the parol contract is not enforced. A case in New York, Rhodes v. Rhodes, 3 Sandf. Ch. 279, makes an apparent exception to this rule, and doubtless upon this case the decision of the trial court rested. In that ease an agreement by one helpless from disease to convey a tract of land to another in consideration of being provided for and taken care of during his lifetime, was enforced against the heirs of the former; and this was placed upon the ground that the services were of such a peculiar character that it was impossible to estimate their value to the recipient by any pecuniary standard; that it was evident that they were not intended to be so measured, and that it was out of the power of the court to restore the complainant to the situation he was in before the making of the contract, or to compensate him in damages. Without criticising this case further than to remark that it illustrates the efforts of courts to find excuses for enforcing parol contracts, despite the statute, we observe in reference to the case at bar that there is nothing to show that the value of plaintiff’s services cannot easily be determined, and she awarded compensation therefor. In other words, it was simply a payment of the consideration in services and not in money. We do not think the difference in the manner of payment ought to take the case out of the statute. Finally, it is said by the jury that she gave up the opportunity of taking a homestead. The law of congress determines that statement to be a mistake. (U. S. Rev. Stat. §.2289.) It might be true that she gave up the opportunity of homesteading a particular tract, or that by reason of years and ill-health it became more inconvenient and burdensome to go out on the frontier and reside long enough to acquire a homestead. But such matters, if they existed, do not appear from the answers of the jury. We think there is no sufficient showing to take the case out of the statute of frauds. The judgment will be reversed, and the case remanded with instructions to enter judgment on the answers of the jury in favor of the defendants, plaintiffs in error, for costs. All the Justices concurring.	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The opinion of the court was delivered by Valentine, J.: This case has once before been to this court, (Blain v. Irby, 25 Kas. 499,) and at that time we think we considered and decided everything of a substantial character involved in the case; but as the case is now presented in a different aspect, we shall again consider and decide the same. October 23, 1875, Eichard M. Blain and his wife Elizabeth Blain executed to Samuel H. Irby a promissory note, and a real-estate mortgage to secure the same, which note and mortgage were for $300, due in four years from date. All the partiés at that time lived in Elk county, Kansas. About May 5, 1876, the plaintiff Irby removed from Elk county to Texas. Just before leaving, however, he left the note and mortgage with one J. M. White, an attorney at law at Howard, Elk county, Kansas. He left them with White for collection, and to secure a debt to White. White had no authority with reference to the note and mortgage except to collect the same, and out of the proceeds thereof to pay the debt due himself, and then to return the remainder of the proceeds to the plaintiff, Irby. Personal-property taxes were levied against Irby in Elk county, Kansas, for the year 1876, but he never paid the same nor made any provision for paying the same. In the early part of the year' 1877, a tax warrant for the collection of said taxes was issued by the treasurer of said county, and placed in the hands of J. Q. Burchfield, the sheriff of the county, for service. The sheriff, being unable to find any other property belonging to Irby, levied upon the said note and mortgage, and took them into his possession. White delivered them to Burchfield, without any objection; Burch-field then advertised them for sale, and sold the same at public auction in the early part of the year 1877, for about $65, to the defendant, Richard M. Blain, Blain being the highest bidder therefor. There was no sufficient evidence introduced, or offered to be introduced, to show that either Burch-field or Blain ever committed any fraud or wrong in procuring the possession of said note and mortgage, or in levying the tax warrant thereon, or in selling or purchasing the same. There was some evidence, however, introduced, and offered to be introduced, tending to make the transaction look a little suspicious, but not enough to authorize any finding of' fraud as against either Burchfield or Blain; and taking all the facts admitted by the pleadings, together with all the facts which the plaintiff’s evidence (that which he offered, as well as that which he introduced) tended to prove, and they would not authorize a finding that either Burchfield or Blain committed any fraud or wrong as against-the rights of Irby. It must be remembered that at the time of the sale of the note and mortgage, they were not due and would not be due far two or three years after that time; and therefore we think, as the note and mortgage were sold at public auction, by a public officer, upon a regular tax warrant, after due notice, for the purpose of collecting taxes due against the owner of the note and mortgage, and as the note and mortgage were not yet due, that Blain, who was one of the makers of the note and mortgage, had authority to bid at the sale and to purchase the note and mortgage in the same manner and with the same consequences as any other person. Irby had no knowledge that the note and mortgage were levied upon or sold, until a long time after these things occurred; but we do not think that these facts can in any manner affect the validity of the sale. Irby was still in Texas when the sale occurred. After all the plaintiff’s evidence was introduced showing the foregoing facts, the court below sustained defendants’ demurrer to the plaintiff’s evidence, and rendered judgment in favor of the defendants and against the plaintiff for costs; and this is the judgment which the plaintiff in error now seeks to have reversed. The plaintiff claims that the judgment should have been in his favor and against the defendants for the amount of the note and mortgage, and for a sale of the mortgaged property. We think the judgment of the court below-was right, .and it will therefore be affirmed. All the Justices concurring.	[ -15, -18, -79, 29, -54, 96, 40, -72, 10, -95, 50, 83, -23, -54, 5, 105, 114, 45, 69, 104, -27, -77, 7, -54, -30, -13, -63, -43, -79, 77, -26, -41, 77, 48, 74, 21, -26, 74, -59, -44, -114, 4, 40, -60, -36, 0, 52, 123, 97, 73, 81, -82, -29, 43, 61, -61, 41, 44, -13, 57, 16, -16, -85, -121, 95, 19, -109, 39, -40, 65, 104, -82, -112, 51, 64, -24, 115, -90, -122, 116, 7, 9, 9, 102, 38, 112, -99, -1, -24, -104, 47, 86, -107, -89, -74, 88, 34, 40, -106, -99, 125, 114, 7, -14, -26, 5, 25, 108, 5, -53, -42, -111, 79, 126, -112, 82, -33, 39, 16, 113, -113, 4, 92, 35, 56, -101, -114, -108 ]
The opinion of the court was delivered by Horton, C. J.: The petition in error filed March 16, 1883, sets forth that-the judgment was rendered in this case on the 29th day of November, 1881, when the district court was not in session, and that such judgment is void therefor; it further sets forth that another pretended judgment was rendered in this case, on the 8th day of March, 1882, which, for various reasons, it avers is void also. Clearly the judgment rendered on the 29th day of November, 1881, is wholly void, and cannot be enforced. (Earls v. Earls, 27 Kas. 538.) But the trial court committed no error in overruling the motion for a new trial, as it did not attack the judgment upon the ground of being void; it merely challenged it as erroneous; and the motion was filed out of term time and not till December 5th, 1881. Therefore the motion as well as the judgment was void and of no effect. (Earls v. Earls, supra.) Had the petition in error been filed within one year after the rendition of said void judgment, we would be authorized to reverse it. (Earls v. Earls, supra.) But we cannot do so now, as under the statute of 1881, proceedings for reversing, vacating or modifying judgments or final orders must be commenced within one year after the rendition of the judgment or the making of the final order complained of, except in case the person entitled to such proceeding be under disability. The plaintiff, however, may yet file his motion in the district court to set aside that judgment, upon the ground that it is void. If the motion be denied in the district court, proceedings in error may be commenced in this court within one year. The petition in error has also been filed too late for us to reverse the judgment of March 8, 1882, even if that be wholly void. No motion for a new trial was filed subsequent to the date of that judgment, and more than a year elapsed after the rendition of that judgment before the commencement of proceedings in this court. The overruling of the motion for a new trial, filed December 5, 1881, in no way aided or otherwise affected that proceeding. No complaint is made in the petition in error of the nunc pro tunc order of the district judge at chambers on March 15, 1883, although' this order is very fully discussed in the brief of the attorneys for the plaintiff; therefore, at this time we make no comment upon the validity of said order. However, upon proper proceedings being had in the district court to vacate that order and the judgment of March 8, 1882, the plaintiff may obtain another hearing, and if not satisfied with the decision of the district court thereon, proceedings in error can be commenced in this court to review the rulings of that court. We have not considered the journal entry prepared by counsel on the'20th day of January, 1882, purporting to set forth the rendition of the judgment on the 10th day of November, 1881, because such journal entry was not filed until March 20,1882, and so far as the record is concerned, does not purport to have been made with the approval of the judge, or entered with his consent, or under his direction. Indeed, the record does not show that this entry was ever made a matter of record in the journal of the.district court. On the other hand, the district judge states in the case-made that the judgment was rendered on the 29th day of November, 1881, when the court was not in session, and after the court had adjourned sine die. If the entry of January 20, 1882, has been improperly entered on the journal of the court, upon the motion of the plaintiff, with the leave of the court, it may be stricken therefrom, and the journal corrected accordingly. The motion to dismiss the petition in error of plaintiff must be sustained. All the Justices concurring.	[ -80, 124, -40, -66, 106, -31, 33, -104, 84, -127, -89, 115, -81, -46, -108, 121, 115, 79, 85, 107, 76, -73, 22, 97, -29, -13, -61, -43, 117, 109, -26, -41, 12, 32, -54, -43, 102, -56, 65, 84, -122, 7, 9, -20, -15, 9, 48, 121, 68, 15, 97, 126, -13, 42, 29, -61, -24, 41, 89, 59, -46, -16, -106, 13, 77, 5, -79, 23, -106, 5, 104, 62, -100, 17, 1, -8, -78, -92, -122, 84, 111, -103, 8, 118, 98, 1, 109, -17, -72, -68, 46, 123, -99, -90, -109, 25, -21, 75, -74, -99, 52, 20, 38, 126, -26, -107, -103, 36, 0, -117, -112, -97, -49, 56, -102, 75, -61, -93, 16, 113, -50, -64, 92, 79, 19, -69, -98, -36 ]
The opinion of the court was delivered by Valentine, J.: This is a petition in error brought to this court for the purpose of reversing an order of the judge of the district court of Wyandotte county, made at chambers, appointing a receiver for the property and business of the Kansas Rolling Mill Company. In the ease of Hottenstein v. Conrad, 5 Kas. 249, it was held that such an order is not reviewable by the supreme court; but the plaintiff in error, the Kansas Rolling Mill Company, challenges that decision, and claims that under the peculiar provisions of §§ 542 and 543 of the civil code, the preliminary or interlocutory order, as the case may be, appointing a receiver is “a final order,” and therefore reviewable by the supreme court as such. Now if such an order is reviewable because it is “a final order,” and no authority can be found in the statutes or elsewhere making it reviewable for any other reason, then an order that “discharges, vacates, or modifies a provisional remedy, or grants, refuses, vacates, or modifies an injunction” would also and by the same reasoning be “a final order,” and for that reason alone be reviewable by the supreme court; and the legislature would be chargeable with the inexcusable folly of enacting “First” that “a final order,” (including these orders,) should be reviewable in the supreme court, and then in the same section enacting, “Second,” and specifically that these orders should be thus reviewable. The reasoning of the plaintiff in error will include these orders as “final orders,” and make them reviewable in the supreme court as final orders, as well the order appointing a receiver. The decision in the case of Holtenstein v. Conrad was made in 1869, and has remained unchallenged up to the present time, fourteen years, and we do not think that this court ought now to disturb it. If the district court, or a judge thereof, improvidently appoints a receiver, such court or judge has ample authority, upon a proper showing being made, to vacate and set aside such appointment; and hence it will seldom if ever happen that any material injustice will be done by the district court, or by the judge thereof, in appointing receivers. The case will be dismissed from this court. Brewer, J., concurring. Horton, C. J.: I am of the opinion that the action of the district judge in appointing the receiver is an order made in a special proceeding affecting a substantial right, and therefore reviewable on petition in error in this court. (Code, §543; Watson v. Sullivan, 5 Ohio St. 42; Railroad Co. v. Sloan, 31 id. 1.) I am also of the opinion that the case of Holtenstein v. Conrad, 5 Kas. 249, should be overruled. Hence I do not concur in the foregoing opinion.	[ -80, -22, -35, 28, 78, 98, 39, -72, 113, -95, 39, 83, -83, -38, 5, 123, -10, 45, -11, 123, 70, -73, 6, -32, 87, -14, -45, -43, -75, 108, -12, 94, 77, 48, 90, -43, 70, -64, -55, 84, -114, 7, 56, -19, 81, -120, 56, 122, 22, 75, 85, 106, -13, 44, 25, -61, 105, 40, -7, -87, 82, -104, -114, -121, 127, 20, 35, 32, 16, 7, 88, 46, -104, 57, 10, -23, 83, -90, -126, 116, 75, 121, 40, -26, 99, 81, 13, -23, -8, -72, 12, -35, -115, -89, -101, 24, -29, 1, 54, -97, 116, 54, 7, 126, -17, -107, 31, -84, 10, -118, -78, -73, 31, 116, -102, -109, -21, 99, 48, 49, -57, -12, 94, 71, 17, 27, -50, -74 ]
The opinion of the court was delivered by Foth, C.: Appellant was convicted of manslaughter in the first degree (K. S. A. 21-407) in connection with the death on February 5, 1967, of Mrs. Lillie Mae Colbert of Coffeyville, Kansas. This was appellant’s third trial on a charge of first degree murder. (An additional count of rape was dismissed at the preliminary hearing.) The first trial ended in a mistrial when a juror died, and the second when the jury was unable to agree on a verdict. After appellant’s motion for a new trial was overruled the state, pursuant to previous notice, introduced evidence of three prior felony convictions. Appellant was thereupon sentenced to life imprisonment undejr K. S. A. 21-107a. He subsequently filed a motion for resentencing, contending that the prior convictions relied upon in imposing sentence under the habitual criminal act were invalid. This motion was overruled and he thereafter perfected this appeal. The evidence indicates that on Saturday night, February 4, 1967, the appellant, the deceased, and four friends engaged in various social activities in the city of Coffeyville, involving dining, drinking, dancing and driving around. In due course they determined to go to Independence where dancing was available at an institution aptly named the 24 Hour Club, and proceeded there in appellant’s automobile, arriving at about 11:30 p. m. The passengers, in addition to the deceased, were Mr. and Mrs. Herbert Martin, and Mr. and Mrs. Leonard White. During their stay in Independence appellant, according to his testimony, attempted to keep a date with a married woman he had been going with in Independence. When she was not at the club he drove to her house and observed her watching television with her husband. She waved him on, so he went back to the club and waited. When she failed to appear within half an hour he went to her house again and found the couple still engaged in the same Saturday night pastime. A third visit found the house dark, and appellant gave up for the night. At about 4:30 a. m. on Sunday, February 5, the original six embarked in appellant’s automobile for Coffeyville. As they left Independence they passed over a rough railroad crossing which apparently knocked one of two mufflers off of appellant’s car. The party nevertheless proceeded to Coffeyville with the car making abnormally loud noises. All the testimony indicates that the first stop on returning to Coffeyville was to let the Whites out at their residence and that the second stop was to let the Martins out at theirs. The subsequent events of those early morning horns are the subject of conflicting stories but it would appear that that was the last time the deceased was seen alive by anyone other than the immediate participants in the ensuing tragedy. The deceased, although married, had been separated from her husband for approximately two years prior to her death. During this period she had been carrying on an active affair with Herbert Martin, clandestine only to the extent that apparently Mrs. Martin was not aware of it. A sister of the deceased, the appellant, and various friends were privy to the affair, some to the extent of providing transportation to and accommodations for numerous trysts. Martin testified that shortly after going to bed on the fatal Sunday morning he awoke and wanted a cigarette. Finding none in his house he drove to the Y. W. C. A. and bought a pack. After doing so, he proceeded to the house of one Phyllis Lee, which had been a regular place of assignation, to see if the deceased might be there. Not finding her, he phoned her house and got no response. At the deceased’s home his knocking on the door was likewise fruitless. He then proceeded to the house of Rose Lloyd, deceased’s sister, and found she was not there either. At this point he gave up his amorous quest and returned home. Both Rose Lloyd and Phyllis Lee testified to Martin’s arrival at their respective houses before dawn. The activities of the appellant from approximately 5:00 a. m. until 8:00 a. m. can be ascertained only from the various accounts given by him on different occasions. At the latter time, however, he was observed entering his house by Allen Flowers, a detective in the Coffeyville police department, who was acquainted with him. Flowers was particularly conscious of the time because he was late to work and had left his home at 7:30 a. m. He noticed that the appellant had dirt on his clothes, and particularly his sport jacket, a fact that impressed him because appellant was known as a natty dresser. When the deceased failed to appear at her home on Sunday, her family and friends met that evening to discuss the situation. At that time appellant stated that, after dropping the Martins off he had driven away with the deceased but returned shortly thereafter and let her off at the Martin house. The last he saw of her, he said, was when she was on the porch of the Martin residence. Upon being notified of the fact the Coffeyville police department commenced an investigation of the disappearance of the deceased. In the course of this investigation two detectives, including Flowers, met with the appellant on February 17, in Independence, where he worked at a dry cleaning establishment. They interrogated him as to his activities on the night and morning of the disappearance and received from him substantially the same story he had previously told the deceased’s family and friends. He added that on first returning to the Martin residence Herb’s car was gone and they spent some time driving around looking for him. They returned at the insistence of the deceased to get some money from Mrs. Martin which belonged to appellant. Again, the last he saw of her was when she went up the Martin’s steps. The money, he said, could wait until the next day — when all parties intended to go to church. His explanation for the dirt on his clothes was that he had gotten down on the ground to look under his car in an effort to locate the source of the noise. He further related that after changing clothes on Sunday morning, he had returned to Independence to look for his missing muffler. His search was unsuccessful and while driving around in Independence he fell asleep at the wheel and had a collision with a parked car. At the time this statement was given, appellant was living in Independence, since his car was disabled and he no longer had transportation from Coffeyville to his job. About a week later, on February 25, 1967, the body of the deceased was discovered accidentally in a dry creek bed in a wooded area approximately seven miles southwest of Coffeyville by a passerby who was searching for water for his overheated truck. He reported his find to the authorities and the Montgomery County sheriff and other officers proceeded to the scene. The deceased’s body was largely covered by brush, dirt and leaves, with only the legs exposed to view. A wig, identified as the deceased’s, was discovered covered by leaves approximately twenty to twenty-five feet from the body. A pathologist examined the body at the scene and later performed an autopsy which revealed approximately twenty-one stab wounds, together with subarachnoid and subdural hemorrhages, consistent with her head having hit a solid or fixed object. Death was attributed to a combination of the head wounds and loss of blood from the stab wounds, although no one of the injuries would have caused death by itself, and in his opinion she might well have survived had she received immediate medical attention. His examination also revealed that she had had sexual intercourse, probably within twenty-four hours and certainly no more than seventy-two hours prior to her death. The body of the deceased was fully clothed except for shoes. A handbag which witnesses had seen her carrying earlier was never found nor was any weapon. One further significant item of evidence appeared on March 7, 1967. Prior to the discovery of the body the owner of the land on which it was found had observed a man’s plaid shirt lying on the ground. Thinking it belonged to a neighbor, he had picked it up and had hung it in his bam, giving it no further thought. On March 7, he happened to look at the shirt and observed spots which appeared to him to be blood, whereupon he called the sheriff. This shirt was positively identified as belonging to the appellant by Rose Lloyd. Her identification was based on a tear in the collar which she had inflicted during the course of a lovers’ quarrel with the appellant at a time when she had been having an affair with him. The site of its recovery was determined to be approximately halfway between the wig and the body. Testifying in his own behalf appellant identified the shirt as his, saying that from the time it was torn he kept it in his car as a dust rag. He testified that he had given it to the deceased in Independence to keep her warm on the return trip. In a prior statement, to be discussed later, he gave an entirely different account. On February 27, 1967, two days after the body had been found, two special agents of the Kansas Bureau of Investigation interviewed the appellant in Independence. The testimony of Agent Ronald Klingenberg is summarized in appellant’s abstract: “We took him to the Dairy Delight, an eating place and interviewed him there in the car. I advised Mr. Melton of his constitutional rights and in so doing, I advised him that he had the right to remain silent, that anything he said could be used against him in a court of law, and he had the right to have an attorney present during the interview and if he couldn’t afford an attorney, one would be appointed for him to represent him during this interview. I asked him, with these rights in mind, if he wished to talk with me about the Lillie Mae Colbert case. He advised that he did, and wanted to cooperate in any way that he could.” Appellant’s account of events was substantially the same as his previous accounts to deceased’s family and friends and to the Coffey-ville detectives. Appellant agreed at this time to make a statement at the county attorney’s office a few days later, but failed to keep this appointment. Agent Klingenberg’s next significant encounter with the appellant occurred some five months later, on July 20, 1967, in the county jail in Tulsa, Oklahoma, where appellant was being held on Oklahoma charges of rape and robbery. He once again advised appellant as to his rights, and again received an assurance of cooperation. Appellant’s account coincided with his prior statements with one significant exception: this time he stated that when he and the deceased returned to the Martin home, Herbert Martin was there and asked to borrow appellant’s car. He agreed to this and Martin and the deceased drove off while he waited in Martin’s car for approximately an hour and a half. Martin returned alone, gave appellant back his car, whereupon appellant went home. Arrangements were made for another statement, and on July 24, 1967, Agent Klingenberg returned to Tulsa in the company of Agent Floyd Gaunt for this purpose. Klingenberg again advised appellant of his rights and, according to his testimony, “At this time Melton said that this was something he felt he had to do and didn’t need an attorney present to do it.” Appellant’s story at this final and crucial statement was that, after leaving the Martin house, he took the deceased to her home, and there encountered a boyfriend of hers from Joplin, Missouri, whose name appellant didn’t know. This boyfriend wanted to talk to the deceased so the appellant got into the back seat and the anonymous boyfriend drove the three of them in appellant’s car to a point approximately five and one-half miles south and west of Coffeyville and parked on a curve near a junk pile. Klingenberg continued: “There an argument occurred between this boyfriend and Lillie Mae about Lillie Mae seeing Herbert Martin. Maurice said he got out of the car and walked East up the road to the comer. I asked him if he recalled going over a bridge and he stated that he walked over a bridge to the corner. At this time a diagram of the road area was sketched. I asked Maurice if this looked like the area that he was referring to and he stated ‘Yes’. I asked him to mark approximately where the car was parked and he did pick up the pen and mark where the car was parked by the junk pile. Maurice stated that he heard some violent arguing in the road near the bridge. It was just getting daylight. He could see Lillie Mae and this man in the road, apparently hitting one another with their fists during the argument about Herbert Martin being a lover of Lillie Mae. Melton stated he went back to see what the trouble was or if he could calm them down and he saw this ‘unknown man’ stabbing Lillie Mae with a knife and then Lillie Mae turned and ran across the ditch in a northerly direction, crossed the fence, and this guy was chasing her and he got her over in the area where Lillie Mae’s body was later found. “. . . Continuing his testimony the witness stated that he ran- over there and watched this guy stab Lillie Mae a number of times about the upper left portion of her body. He saw Lillie Mae lacking and screaming and bleeding, then he returned to his car, turned it around and parked near the bridge and waited for the other guy to come over to the car. This man came to the car, and they drove back to Coffeyville where the man got into his own car parked about one door down from Maurice Melton’s home. I asked Maurice if he made any attempt to assist Lillie Mae and he stated that he did not, he merely watched as it was none of his business, whatever they were arguing about, or doing to one another. I asked him if he realized this man he had been shielding was actually the killer of Lillie Mae and he stated he realized this from the locations and conditions of the wounds. I asked him if he realized that his shirt was found near the body and he stated that on his way out to the location, Lillie Mae was chilly so he took his shirt from the back seat of the car and put it over Lillie Mae’s shoulders. I asked Maurice if the boyfriend had asked him to inflict some wounds on Lillie Mae’s body to make him an accomplice to this crime; and he stated that he had not. I asked him if he or the boyfriend had sexual relations that evening and Maurice denied having any relations with Lillie Mae, ever, and especially that night. He further stated he had no knowledge of whether the boyfriend had or had not, but he doubted very much if he had due to the time element. I asked if there was any conversation on the road back to town and he said there was none. I asked if the boyfriend had threatened him in any way and he said that he had not, that they just didn’t talk. He merely took the man back to his car and let him out. I asked if Maurice actually saw the knife and he said he had, that the light was good enough. “I asked if he saw the knife go into Lillie Mae’s body and he stated that he did see this, that it had a long blade. I asked where the knife was at that time and Maurice stated that he had no knowledge of where the knife was. I asked Maurice if he would be willing to give a written statement covering these events and he said he wanted his public defender to come down to witness the statement; that he wanted to talk to him about another case. At this time, I went out and attempted to contact John S. Morgan of 1324 North Winston, Tulsa, Oklahoma, whose name he had given me. “During the conversation Melton put marks on the diagram, the one that marked the approximate location of the body when it was found. . . . “I asked Melton where the argument took place and he made marks on the exhibit to show where he last saw Lillie Mae Colbert’s body and he stated there was a depression over the path in some trees and he made these marks. (Pointing to the exhibit.) “The interview was finished about 5:15 because Maurice wanted to talk to his attorney.” At the trial appellant objected strenuously to the admission into evidence of this final statement, together with the map or diagram which it produced. This objection was renewed on his motion for a new trial and is his chief ground for urging reversal here. The thrust of his argument is that a complaint had been filed charging him with the offense at the time of the interrogation; that he had a public defender as appointed counsel in connection with the Oklahoma charges then pending against him; and that no interrogation could constitutionally take place in the absence of such counsel. His main reliance is on Massiah v. United States, 377 U. S. 201, 12 L. Ed. 2d 246, 84 S. Ct. 1199. Before exploring this aspect of appellant’s contention we note that, prior to admitting Agent Klingenberg’s testimony into evidence, the court conducted a hearing on its admissibility outside the presence of the jury, as required by State v. Milow, 199 Kan. 576, 433 P. 2d 538, and Jackson v. Denno, 378 U. S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774. After this hearing the testimony was in sharp conflict. Klingenberg testified as to his reiteration of the Miranda warnings: “Question: . . . What did you advise him? “Answer: I advised him he has the right to remain silent; anything you say can be used against you in a court of law and you have the right to talk to a lawyer and have him present while you are being questioned and if you cannot afford to hire a lawyer one would be appointed to represent you before any questions, if you wish one. Then I asked him, do you understand each of these rights explained to you, and, having these rights in mind, do you wish to talk to me now. “Question: And what, if anything, did he say after you asked him these last two questions? “Answer: He said that he had something he felt he had to— “Question: Was anything said about his lawyer at this time? "Answer: No sir. “I advised him of his constitutional rights each time I talked to him which was on July 20 in Tulsa and on February 27 in Independence, Kansas. Each time he said he understood these rights. On July 24, 1967, Melton appeared to be conscious of what was going on. I did not promise him anything or intimidate him in any way. He was not under the influence of alcohol or drugs. “I talked with Melton about 20 minutes before he related the statement, plus about 45 minutes to include the diagram and the rest of the time was spent in attempting to locate his attorney who was out of town. “Question: When was the first time he told you he had an attorney and he wanted to have his attorney there? “Answer: The first time he mentioned an attorney was after this oral statement. I asked him for a written statement and he said he would like to have his attorney witness this statement.” According to Klingenberg, the interview commenced about 3:30 p. m., and the discussion of the Lillie Mae Colbert case about 4:00 p. m. By 5:15 it was completed, including the drawing of the con troversial diagram with appellant’s marks on it. At that time Klingenberg asked appellant if he would make a written statement, to which appellant agreed, but said he would like to have his Oklahoma public defender present to witness it. This, according to Klingenberg, was the first time appellant had mentioned wanting an attorney and the first time he was aware that appellant had one. The interrogation immediately ceased and an effort was made to locate appellant’s Oklahoma attorney. By 10:30 p. m. it was determined that the attorney was out of town, and the interview ended. The following day Klingenberg again met with appellant, who was accompanied by his Oklahoma attorney. He was advised that appellant wished to make no further statements, and none were taken. Appellant, on the other hand, testified at the hearing that he had on July 20 agreed with Klingenberg to make a statement in the presence of his attorney, and that during the interview of July 24, he expected his attorney momentarily, pursuant to such agreement. According to him, the interrogation lasted during the entire seven hour period; during that period Klingenberg appeared angry at times, dangled hopes of leniency at other times; and concluded by promising to “throw the book” at him. (Klingenberg specifically denied both intimations of leniency or threats of any kind.) He also denied having made any marks on the diagram prepared by Klingenberg. (Agent Gaunt, on rebuttal at the trial, testified he had observed appellant marking the diagram, but apparently this testimony was not introduced at the pre-admission hearing.) At the close of the hearing the trial court made the following findings: “Yes. Well, the Court is going to find that the defendant did make a statement and that he was conscious and was capable of understanding what he said and did, and that he was not induced to make this statement under compulsion or by infliction or threats of infliction of suffering upon him or another, or by prolonged interrogation under such circumstances as to render the statement involuntary or by threats or promises concerning action to be taken by a public official with reference to the crime. “The Court is also going to find that this statement was voluntarily and understandingly made after having been advised of his rights not only on this occasion but previous to this time that the defendant had been through this procedure; had previously had an attorney appointed for him in another case and was fully aware that he was entitled to the protection of an attorney and that he voluntarily proceeded to make the statement.” It was incumbent on. the trial court to weigh the conflicting evidence and determine the voluntariness and admissibility of the statement. State v. Milow, supra. There being substantial competent evidence to sustain its findings they will not be disturbed on appellate review. Baker v. State, 207 Kan. 214, 483 P. 2d 1039; State v. Harden, 206 Kan. 365, Syl. ¶¶ 2, 4, 480 P. 2d 53; State v. Pittman, 199 Kan. 591, Syl. ¶ 3, 433 P. 2d 550. Appellant insists, however, that after charges were filed against him no statement could be taken from him in the absence of counsel, under the doctrine of Massiah v. United States, supra. We do not read Massiah so broadly. In that case federal officers surreptitiously monitored through electronic means a post-indictment conversation between the accused and a codefendant who had agreed to cooperate with the investigating officers. Massiah at that time was represented by retained counsel. He was unaware of the fact that he was, in effect, being interrogated by a government agent. Certainly no element of waiver was present. The statement was held inadmissible on Sixth Amendment grounds because of the absence of counsel. As we see it, this holding must be scrutinized in the light of Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. That case, while greatly enlarging the concept of the right to counsel during custodial interrogation, clearly recognized that, “The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently.” (384 U. S. at 444.) And further, “Any statement given freely and voluntarily without any compelling influence is, of course, admissible in evidence.” (l. c. 478.) What Miranda was concerned with was the advice and warnings which must be given a suspect before interrogation — in the absence of which constitutional rights cannot be said to have been “voluntarily, knowingly and intelligently” waived. The trial court made an explicit finding that the statement in question here was voluntarily made after appellant had been fully advised of his rights on several occasions. Implicit in this finding was that appellant had waived the right to have counsel present. Appellant’s Oklahoma counsel had, of course, been appointed to represent him only with respect to the Oklahoma charges, not those filed in Montgomery County. Hence there is room for the state’s argument that appellant was without counsel as to the Kansas charges and Massiah is wholly inapplicable. Leaving this argument aside, we are unwilling to depart from our prior holdings and now say, as appellant would have us do, that a statement elicited from a defendant in the absence of counsel is inadmissible under any circumstances. See, e. g., Morris v. State, 203 Kan. 249, 452 P. 2d 840; Cox v. State, 199 Kan. 797, 433 P. 2d 470; Powers v. State, 194 Kan. 820, 402 P. 2d 328. We hold that a waiver of counsel may be effectively made after, as well as before, charges are filed. Cf. Holt v. State, 202 Kan. 759, 760-61, 451 P. 2d 221. The formality of filing a complaint is not the touchstone in determining when the proceedings have reached a “critical” stage when the right to counsel attaches — else we would not have Miranda or its predecessor, Escobedo v. Illinois, 378 U. S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758, both asserting a right to counsel at a time prior to the filing of formal charges. The real issue in confession cases is the validity of the waiver of the accused’s Fifth and Sixth Amendment rights, a fact question to be determined in the light of the totality of the circumstances. As pointed out above, this question has been determined in this case in favor of the admissibility of appellant’s statement. Our view of Massiah is in accord with that of the overwhelming majority of the federal courts to which the problem has been presented. Their view is aptly summarized in United States v. De Loy, 421 F. 2d 900 (5th Cir. 1970) where the court was dealing with an indicted defendant who had counsel, but nevertheless insisted on communicating with agents of the Federal Bureau of Investigation. When these communications were admitted at his trial, the defendant objected on the basis of Massiah. In holding the statements admissible the court first posed the problem: “Massiah, however, left unanswered a basic question: Are all post-indictment statements made without the presence of counsel inadmissible or are such statements tainted only when there exists some ‘special circumstances’ such as the surreptitious radio surveillance there involved?” (p. 901.) Noting that the Third Circuit had given the decision a broad reading, outlawing all post-indictment statements given in the absence of counsel, the court went on to say: “Other circuits, however, have taken a more restrictive view of Massiah, allowing the admission of post-indictment statements voluntarily and deliberately made by a properly warned defendant who was not tricked into speaking by some deliberate act of the investigating officers. Arrington v. Maxwell, 6 Cir. 1969, 409 F. 2d 849; Reinke v. United States, 9 Cir. 1968, 405 F. 2d 228; Coughlan v. United States, 9 Cir. 1968, 391 F. 2d 371, cert. denied, 393 U. S. 870, 89 S. Ct. 159, 21 L. Ed. 2d 139; United States v. Garcia, 2 Cir. 1967, 377 F. 2d 321, cert. denied, 389 U. S. 991, 88 S. Ct. 489, 19 L. Ed. 2d 484; United States v. Gardner, 7 Cir. 1965, 347 F. 2d 405, cert. denied, 382 U. S. 1015, 86 S. Ct. 626, 15 L. Ed. 2d 529; United States v. Accardi, 2 Cir. 1965, 342 F. 2d 697, cert. denied, 382 U. S. 954, 86 S. Ct. 426, 15 L. Ed. 2d 359.” (p.902.) See also, United States v. Crisp, 435 F. 2d 354 (7th Cir. 1970). We believe this to be the sounder rule, and follow it here in holding that it was not error to admit appellant’s statement and the contested exhibit. Appellant also urges that the evidence was insufficient to sustain his conviction. Granted that, apart from appellant’s own statements which were clearly intended to be exculpatory, the evidence on which he was convicted was largely circumstantial, our function on appeal is to ascertain whether there was a basis in the evidence for a reasonable inference of guilt. State v. Aten, 203 Kan. 920, Syl. ¶ 6; 457 P. 2d 89; State v. Nicolay, 202 Kan. 209, Syl. ¶ 2, 447 P. 2d 403. Without reviewing all of the state’s evidence, we have no hesitation in saying it was ample to support the verdict. We mention only that the deceased was last seen alive in appellant’s company; from this last viewing at about 5:00 a. m. until he was seen by officer Flowers about 8:00 a. m., his activities were unaccounted for; at that hour he had dirt on his clothes; his bloody shirt was found in close proximity to the site of the body. Additionally, there was testimony that he had previously admitted to Rose Lloyd at least one attempt to molest the deceased sexually at a time when he was “smoking dope,” and while Rose, his paramour of the moment, was in the hospital. To all this must be added his three inconsistent statements as to his last sight of the deceased, including the inherently incredible final one involving the unknown assailant, his disinterested spectator’s role at the homicide, his accommodation of the killer in taking him back to Coffeyville without comment, and his subsequent silence as to these events. As a corollary of this argument appellant asserts that the circumstances of the crime all point to an intentional killing, and that there is no evidence of malice or ill will on his part towards the deceased. Hence, he argues, the evidence cannot support a conviction of first degree manslaughter. His theory here seems to be murder or nothing. The answer is twofold. First, the record is barren of any objection to the court’s instructing the jury on the lesser included offense or submitting the verdict form to it; and second, the mental state of the attacker is an essential element in determining the culpability of any homicide. The medical testimony was that none of the wounds would have been fatal by itself, and that with prompt medical attention she might have survived. The jury might well infer that her attacker did not intend her death, but that it was the result of an assault upon her — L e., first degree manslaughter. Thus it was wholly proper for the court to instruct the jury on a degree of homicide which takes these elements into account, and the jury might reasonably have reached the verdict it did. See State v. Patterson, 200 Kan. 176, 434 P. 2d 808; State v. Booker, 200 Kan. 166, 434 P. 2d 801. Finally, we reach appellant’s attack on the three prior convictions which provided the basis for his sentence under the habitual criminal act. Each was had in the district court of Montgomery County; in each appellant entered a plea of guilty while represented by and after extensive consultation with appointed counsel; and in each he claims the plea was induced by an infringement of his constitutional rights at some prior stage of the proceeding. The first was a 1955 conviction for burglary and larceny in which he claims an invalid confession was used at his preliminary hearing. The second was a 1959 conviction for the same offense, and about which he makes the same complaint. The third was a 1964 conviction for the unlawful possession of a pistol under former K. S. A. 21-2611, as to which he contends the pistol in question was seized as a result of an unlawful search and was introduced in evidence at his preliminary hearing. He makes no contention that any of his guilty pleas were involuntary or coerced by anything beyond the normal pressure exerted by the knowledge he and his attorney had in each case concerning the evidence in the state’s possession. As to the second two, he states in the affidavit submitted in support of his motion for resentencing that each plea was entered as a result of “plea bargaining” between his attorney and the county attorney whereby in each case the prosecutor refrained from invoking the habitual criminal act. This fact alone, of course, does not amount to “coercion” to enter the plea. See Mr. Justice Fromme’s extensive discussion of the entire field of plea negotiations and agreements in State v. Byrd, 203 Kan. 45, 453 P. 2d 22. And see Whaley v. State, 202 Kan. 175, 446 P. 2d 397. We have consistently held that a plea of guilty freely and voluntarily entered after consultation with counsel and with full knowledge of the possible consequences waives any defects or irregularities occurring in any of the prior proceedings. See State v. Kennelly, 207 Kan. 344, 347, 485 P. 2d 179; Lee v. State, 207 Kan. 185, 483 P. 2d 482; Stewart v. State, 206 Kan. 147, 476 P. 2d 652. This is so even though the defects may reach constitutional dimensions. Thus, an otherwise valid guilty plea is not subject to collateral attack because it was entered to secure a lesser penalty, even though the statutory scheme imposing the penalty sought to be avoided may be, or is later declared to be, unconstitutional. Brady v. United States, 397 U. S. 742, 25 L. Ed. 2d 747, 90 S. Ct. 1463; Parker v. North Carolina, 397 U. S. 790, 25 L. Ed. 2d 785, 90 S. Ct. 1458. Neither is a plea vitiated if based on a mistaken view of the admissibility of a confession, even if the confession was in fact coerced. McMann v. Richardson, 397 U. S. 759, 25 L. Ed. 2d 763, 90 S. Ct. 1441; Parker v. North Carolina, supra. By the same reasoning a plea is not involuntary merely because motivated by the state’s possession of evidence which may have been acquired in violation of the accused’s Fourth Amendment rights. We find no merit in appellant’s attacks on his prior convictions and on the sentence which they produced. The judgment is affirmed. APPROVED BY THE COURT.	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The opinion of the court was delivered by Schroeder, J.: The primary question presented by this appeal is whether a claimant in a workmen’s compensation case, with the permission and consent of the respondent and its insurance carrier against whom the claimant has made a claim for workmen’s compensation benefits, may dismiss his claim for such workmen’s compensation benefits. The foregoing issue is complicated somewhat by the facts in this case and the assertions made by the appellants relative to the facts. Approximately one year prior to April 27, 1968, Luther H. Drennon (claimant-appellee), while employed by Colorado Interstate Gas Company as a well tender, was asked by Marcus Ford, his immediate supervisor at Colorado Interstate Gas Company, if he would help Braden Drilling Company, Inc. take care of some of its wells. Ford at that time introduced Drennon to Donald Jackson, the representative of Braden Drilling Company, Inc. Drennon had done this type of work before while working for other companies at Colorado Interstate Gas Company’s request. As a consequence, Drennon was employed by Braden Drilling Company, Inc. to “blow” its wells, etc. In order for Drennon to carry out his duties for Colorado Interstate he was assigned a pickup and certain tools, all of which were returned to the company’s custody at the end of the day’s shift, where they remained until the start of the next working day. Drennon had agreed with Jackson to check a Braden Drilling Company well, commonly known as Lake Unit No. 1, for which he was to receive $75 every three months. This arrangement had been discussed with his Colorado Interstate supervisor who knew Drennon was getting paid for the work. Drennon was told by the Colorado Interstate Gas Company supervisor that if the work for Braden Drilling Company amounted to very much he would have to do it on his own time, but there were some little things he could do on Colorado Interstate’s time. It did not take Drennon much time to check the Braden Drilling Company’s well known as Lake Unit No. 1. On the morning of April 27, 1968, Drennon commenced working his assigned wells belonging to Colorado Interstate. After working some of Colorado Interstate’s wells in Kearny County, Kansas, he proceeded to his assigned wells located in Stanton County, Kansas, and while enroute to Stanton County, driving through Hamilton County, he diverted his course and stopped at Graber No. 1 well belonging to the Braden Drilling Company, Inc. to “blow” it as he had previously been instructed to do by Mr. Jackson. The Graber Unit well was being prepared by Colorado Interstate to be hooked into its system. While in the process of “blowing” the well, commonly known as the Graber Unit, Drennon met with personal injury. At the time he met with his personal injury Drennon was “blowing” the Graber Unit “free gratis” to Braden Drilling Company, “for the benefit and as a matter of public relations for Colorado Interstate Gas Company in getting along with the drillers and drilling companies associated with Colorado Interstate Gas Company.” As a result of the personal injuries Drennon expended over $1,400 for medical treatment, but has never received compensation payments or reimbursement for his medical expenses. Drennon testified that in the work he did for Braden Drfiling Company on the Lake Unit he was never furnished any tools or told when to do the work, other than when to start on the unit; that the Braden Drilling Company never exercised any direction or control over him in the performance of his job. He further testified the same was true of the Graber Unit. On the 27th day of September, 1968, Drennon served a written claim for workmen’s compensation upon both Braden Drilling Company and Colorado Interstate Gas Company. On the 4th day of November, 1969, a hearing was held before the examiner, at which hearing the only witness testifying was the claimant, Drennon, who related the facts incident to his employment and the facts concerning the accident. At this hearing it was mutually agreed by all parties that further testimony in the case would be submitted to the examiner by deposition of the various witnesses. On the 25th day of February, 1970, before additional testimony was taken, the claimant filed a motion to dismiss his claim for workmen’s compensation against the Braden Drilling Company, Inc. and its insurance carrier, Insurance Company of North America. In support of his motion the claimant recited that he “was employed by Respondent, Colorado Interstate Gas Co., and within the scope of his employment, at the time he met with accidental injury as per Application and Claim filed September 27, 1968, and for that reason there has been a misjoiner of Respondent Braden Drilling Co., Inc. and its Carrier, Hartford Accident and Indemnity Co.” The claimant named the wrong insurance company and later corrected it to “Insurance Company of North America.” On the 21st day of April, 1970, a hearing was conducted before the examiner on the claimant’s motion to dismiss, at which time the claimant again was the only witness. Testimony was elicited to the effect that the claimant knew if the examiner sustained his motion his only remedy thereafter would be against Colorado Interstate Gas Company and its insurance carrier, the Hartford Accident & Indemnity Company. The claimant’s testimony disclosed he had discussed the matter with his counsel; was satisfied with his counsel and in agreement with the motion to dismiss. The claimant further stated his medical expenses were somewhere around $1,500; that his doctors informed him it would be necessary to undergo two additional operations; that as a result of said operations he would not be able to work for several months; and that the probable costs of such operations would be at least $1,500. He further informed the examiner of his employment situation with respect to the Braden Drilling Company and Colorado Interstate at the time of the accident; and that he had entered into an agreement with the Braden Drilling Company whereby he was given a cash settlement of $1,500, but that he was not given anything for future medical expenses. The examiner after hearing the matter sustained the claimant’s motion dismissing Braden Drilling Company, Inc. and its insurance carrier. Colorado Interstate Gas Company and its insurance carrier filed an application for a director’s review. On the 18th day of May, 1970, the director affirmed the order of the examiner, finding that the claimant’s request to dismiss met with the approval of the Braden Drilling Company, Inc. and its insurance carrier. In the order the driector stated: “. . . The Director does not consider that the protection of the public interest can be extended to disapprove claimant’s specific request to Examiner West and further to force the Braden Drilling Company, Inc. and its insurance carrier to continue defense of the claim filed against them. . . .” Colorado Interstate Gas Company and its insurance carrier then appealed to the district court of Hamilton County, Kansas, from the director’s order. Thereafter on the 7th day of July, 1970, the district court entered judgment affirming the director’s order. The findings of fact and conclusions of law in the director’s order were adopted by the district court and incorporated and made a part of the journal entry of judgment. Thereupon appeal to the Supreme Court was duly perfected by Colorado Interstate Gas Company and its insurance carrier assigning the following statement of points: “The Order of the Workmen's Compensation Director was in error in sustaining claimant’s motion to dismiss for the reason 1) there is no authority in the Workmen’s Compensation Act for so doing. 2) The parties to the action have not had an opportunity to present evidence on the issues defined nor defenses asserted. 3) It is contrary to public policy by thus allowing the employer and injured employee to contract out of the full protection of the Act.” On appeal the Braden Drilling Company, Inc. and its insurance carrier join with the claimant as appellees on the brief filed with the Supreme Court. In Kansas an employee may have two employers, and in the event of personal injury covered by the workmen’s compensation act, the employee may look to either one or both of his employers for compensation in accordance with Mendel v. Fort Scott Hydraulic Cement Co., 147 Kan. 719, 78 P. 2d 868. The Kansas workmen’s compensation act authorizes settlement by agreement (K. S. A. 44-527; and see K. A. R. 51-3-3 [3].) The rule requires that any agreement must be disapproved by the director, unless compensation has been paid in conformity with the requirements of the act for the injury sustained. The appellants argue it is impossible for the director to carry out the foregoing mandate, because neither tire claimant nor his employer, Braden Drilling Company, Inc., has filed the agreement with the director. The claimant concedes the settlement agreement made with the Braden Drilling Company, Inc. was never filed with the director of workmen’s compensation, but argues the settlement was not made to take the place of a workmen’s compensation award. While the record in this case may be construed, as the appellants construe it, to the effect that the claimant was engaged in dual employment at the time of his accident (see Hobelman v. Krebs Construction Co., 188 Kan. 825, 366 P. 2d 270), it also discloses that the claimant may have been an independent contractor of the Braden Drilling Company, Inc., and by reason thereof not entitled to Kansas workmens compensation benefits from the Braden Drilling Company, Inc. (See Henderson v. Sutton's Food City, 191 Kan. 145, 379 P. 2d 300.) This conclusion must be adopted when the record is viewed in the light most favorable to the prevailing party at the trial court level. There is nothing in the record to establish that the claimant entered into an agreement for workmens compensation with the Braden Drilling Company, Inc. It follows the appellants’ charge that the claimant contracted out from under the benefits of the Kansas workmen’s compensation act contrary to the public policy of this state cannot be sustained. The record does disclose that the claimant elected not to pursue his claim for workmen’s compensation any further against the Braden Drilling Company, Inc. and its insurance carrier, but that he is pursuing his claim for workmen’s compensation against Colorado Interstate Gas Company and its insurance carrier. The agreement which the appellants allege to be an agreement for compensation, or in lieu of compensation, is not in the record, nor is there any indication the document was before the examiner. We must assume, therefore, as the appellees contend, that the agreement in question was a settlement relating to possible civil litigation arising from the same surrounding facts as are involved in the claim for compensation filed by the claimant against Colorado Interstate Gas Company and its insurance carrier. At this point the query is: May the claimant in a workmen’s compensation case, with the permission and consent of the respondent and its insurance carrier, against whom he has made a claim for workmen’s compensation benefits, dismiss his claim for such workmen’s compensation benefits? The foregoing question is one of first impression in this jurisdiction. The appellants concede, if this had been a civil action, the claimant would encounter no difficulty in having his motion sustained, but they argue there is no express authority in our workmen’s compensation act which would authorize the claimant to dismiss his claim against the Braden Drilling Company, Inc. and its insurance carrier. To support their position the appellants rely upon the oft-quoted statement in our decisions to the effect that: “. . . the workmen’s compensation act establishes a procedure of its own, and that the procedure furnishes a remedy which is substantial, complete and exclusive in compensation cases. . . .” (Employers’ Liability Assurance Corp. v. Matlock, 151 Kan. 293, 298, 98 P. 2d 456; and see Anchor Casualty Co. v. Wise, 172 Kan. 539, 542, 543, 241 P. 2d 484.) What the appellants fail to note in the foregoing quotation is that it is the remedy which is said to be substantial, complete and exclusive and not the procedure provided in the workmen’s compensation act. The appellants also rely upon Kissick v. Salina Manufacturing Co., Inc., 204 Kan. 849, 466 P. 2d 344, where this court stated the workmen s compensation act makes no provision for the dismissal of an employer’s appeal upon his failure, pending appeal, to make the payments specified therein. The section of the workmen’s compensation act pertaining to procedure is K. S. A. 44-523. It provides in part that the director or court in a workmen’s compensation proceeding shall not be bound by technical rules of procedure, and that they shall act reasonably without partiality. The fair implication of the workmen’s compensation act is that any procedure which is appropriate and not prohibited may be employed. (Walker v. Kansas Gasoline Co., 130 Kan. 576, 581, 287 Pac. 235.) The appellants rely upon two cases from other jurisdictions for the proposition that the claimant is not authorized to dismiss his claim for workmen’s compensation against his employer under the workmen’s compensation act. (Profitt v. J. G. Watts Const. Co. [1962] 140 Mont. 265, 370 P. 2d 878; and Overcash v. Yellow Transit Co. [1944] 352 Mo. 993, 180 S. W. 2d 678.) In the Profitt case an employee filed a claim with the Industrial Accident Board of Montana, but thereafter attempted to withdraw the claim so that he could maintain a civil action against his employer. His employer demanded a hearing of the claim and opposed the withdrawal of the claim. Although the language in the opinion of the Montana Supreme Court is silent as to whether or not there was a procedure available to withdraw claims before the Industrial Accident Board, the court held the Industrial Accident Board could not dismiss a claim on the application of the employee over the objection of the employer, implying that a claim could be withdrawn if the employer did not object. Clearly, this case is distinguishable and tends' to support the action of the trial court herein because the Braden Drilling Company, Inc., the employer against whom the claimant in the instant case filed a claim which he later sought to withdraw, consented to the dismissal of the claim. In the Overcash case a truck driver employed and residing in Kansas was killed in the course of his employment while driving a truck in the state of Missouri. The employee’s widow and minor daughter filed a joint claim for workmen’s compensation in Kansas under the Kansas workmen’s compensation act. Thereafter the widow also filed a claim for workmen s compensation in the state of Missouri under its act. Over objection of the respondent employer the widow then sought to dismiss her claim against the employer in the Kansas proceeding, after she was denied a continuance. The widow failed to appear upon refusal of the examiner to dismiss the claim, but the minor daughter and the employer appeared at the hearing and an award of compensation was made. The question before the Missouri Supreme Court was whether a prior award by the Kansas workmen’s compensation commissioner barred the recovery of a second award for the same injury under the Missouri workmen’s compensation act. The court held the second award was barred. The Missouri Supreme Court, in arriving at its decision, reviewed portions of the Kansas workmen’s compensation act, and it held that a joint claim could not be dismissed by one of the parties under the Kansas workmen’s compensation act. The court stated: “. . . Moreover in response to a written request for a continuance, a member of the Compensation Commission had previously advised Tucker that it was his opinion the Kansas practice would not permit a continuance in a proceeding when a joint petition had been filed. No doubt the same would be true as to an attempt to dismiss a joint petition by only one of the parties. Such would be in harmony with the rule of general procedure that a party will not be permitted to dismiss if such action would prejudice the rights of other parties interested in the prosecution of the suit.” (pp. 1000, 1001.) A fair implication in the Overcash opinion is that if the claimants, who filed a joint claim, and the respondent and its insurance carrier, against whom the claim was made, had all agreed to a dismissal of the joint claim, such dismissal- would be permitted. The Overcash case has been interpreted in 100 C. J. S. Workmen’s Compensation § 422, as follows: “. . . Where a party is not entitled to a voluntary dismissal as a matter of right, the grant or denial of a dismissal rests in the discretion of the board or examiner. . . .” (p. 265.) A Kansas case which refutes the appellants’ contention that procedure under the Kansas workmen’s compensation act is exclusive is Carter v. State Department of Social Welfare, 186 Kan. 187, 348 P. 2d 609. The question there was whether a district court could dismiss a respondent’s appeal for want of prosecution. The respondent appealed from an award of compensation to the district court of Shawnee County, Kansas. After the respondent failed to appear on the first day of two successive terms of the district court, where an official legal publication had listed the case for disposition or assignment, the case was called by the court and the respondent failed to appear. Thereupon the district court dismissed the case for want of prosecution. The respondent appealed and this court held the lower court had not abused the exercise of its power of discretion and quoted language from City of Wichita v. Houchens, 184 Kan. 297, 335 P. 2d 1117, as follows: “ ‘We think the law is well settled that the power of the courts to dismiss a case because of failure to prosecute with due diligence is inherent and exists independent of any statute or rule of court. (City of Wichita v. Catino, 175 Kan. 657, 265 P. 2d 849; 17 Am. Jur., Dismissal, Etc., § 77, p. 151; 27 C. J. S. Dismissal and Nonsuit § 76.)’ ” (p. 189.) There is nothing in the Kansas workmen’s compensation act which expressly authorizes the dismissal of an appeal to the district court for want of prosecution. In view of the admonition of the legislature in 44-523, supra, that the workmen’s compensation director or court shall not be bound by technical rules of procedure, any procedure which is appropriate and not prohibited by the Kansas workmen’s compensation act may be employed, where those charged with administering the law act reasonably and without partiality. In Jones v. Securities Commission (1936) 298 U. S. 1, 80 L. Ed. 1015, 56 S. Ct. 654, the United States Supreme Court was confronted with an administrative procedural problem. In the opinion the court said: “. . . The act contains no provision upon the subject; and it may not be construed as attempting to confer upon the commission an arbitrary power, under rule or otherwise, to deny, without reason, a motion to dismiss. We are unable to find any precedent for the assumption of such power on the part of an administrative body; and we go to the practice and rules of the courts in order to determine by analogy the scope and limit of the power; for, at least in the absence of a statute to the contrary, the power of a commission to refuse to dismiss a proceeding on motion of the one who instituted it cannot be greater than the power which may be exercised by the judicial tribunals of the land under similar circumstances. . . . “ ‘It is very clear from an examination of the authorities, English and American, that the right of a complainant to dismiss his bill without prejudice, on payment of costs, was of course except in certain cases. . . . The exception was where a dismissal of the bill would prejudice the defendants in some other way than by the mere prospect of being harassed and vexed by future litigation of the same kind.’ [City of Detroit v. Detroit City Ry. Co., 55 Fed. 569, 572.]” (p.19.) The Kansas workmen’s compensation act makes no provision concerning the subject of dismissal of claims, but the Kansas code of civil procedure provides for both voluntary dismissal by one who initiates proceedings and by order of the court. (K. S. A. 60-241 [a].) The Braden Drilling Company, Inc. and its insurance carrier see no prejudice and claim none to them as a result of the dismissal of Drennon’s claim for compensation against them. Neither the director nor the trial court saw any prejudice to the appellants by the dismissal of Drennon’s claim for compensation against Braden Drilling Company, Inc. and its insurance carrier, because his claim against Colorado Interstate Gas Company and its insurance carrier is still pending for presentation of evidence and determination by the examiner. The granting of the claimant’s motion for dismissal in no way deprives the appellants of their right to present evidence on the issues defined or the defenses which they may assert. Any rights the appellants may have against the Braden Drilling Company, Inc., or its insurance carrier, cannot affect the claimant’s rights under the workmen’s compensation act against the appellants. (Attebery v. Griffin Construction Co., 181 Kan. 450, 312 P. 2d 598; United States Fidelity & Guaranty Co. v. Maryland Cas. Co., 186 Kan. 637, 352 P. 2d 70; and Kuhn v. Grant County, 201 Kan. 163, 439 P. 2d 155.) In view of the fact that the Kansas workmen’s compensation act is silent on the subject of dismissals, and that it is within the discretion of the district courts to enter orders of dismissal on such terms and conditions as the judge deems proper, the claimant was exercising his unqualified right to move for a dismissal of his claim with the consent of the Braden Drilling Company, Inc. Accordingly, the district court of Hamilton County, Kansas, did not err in granting the claimant’s motion for dismissal, but was in fact exercising an inherent power independent of any statute or rule. (See Gawith v. Gage’s Plumbing & Heating Co., Inc., 206 Kan. 169, 476 P. 2d 966.) The judgment of the lower court is affirmed.	[ 20, -6, -75, -83, 8, -32, 58, -109, 101, -65, 37, 115, -51, -62, 12, 121, -17, 63, 84, 107, -9, -78, 3, -14, 82, -77, 121, 76, -16, 75, -76, 86, 76, 48, -118, -60, -26, 72, 69, 28, -114, 4, -71, -18, -39, -126, 56, 106, -80, 75, 1, -122, 114, 42, 24, -49, 45, 44, 127, 45, 80, -16, -85, 5, 95, 16, 35, 5, -104, 7, -56, 30, -104, -72, 56, -56, 82, -90, -58, -12, 41, -103, 8, -82, 99, 51, 20, -25, -20, -72, 22, -65, -115, -92, -80, 24, 59, 73, -106, 29, -8, 30, 69, 124, -32, 13, 86, 109, 11, -125, -14, -32, 79, 116, -97, 3, -49, -123, 52, 96, -34, -78, 92, 71, 122, 31, 3, -112 ]
The opinion of the court was delivered by Hatcher, C.: This is an appeal from a judgment rendered on a jury verdict in a condemnation proceeding. The appellant, the city of Overland Park, Kansas, through eminent domain proceedings, acquired approximately twelve acres of land of the appellees for a municipal park. About six acres of this tract was covered by a lake or pond. Both parties appealed from the award of the appraisers. The matter was tried to a jury resulting in a verdict very substantially increasing the award. The facts will be presented in more detail as we discuss the issue to which they apply. The appellant first complains that the trial court erred in admitting as an exhibit a map depicting other sales of land without a showing that such tracts were comparable to the landowners’ tract, and in admitting testimony about such sales for the same reason. The map designated as Exhibit 7 was prepared by one of appellees’ expert witnesses. He testified: “In making my appraisal, I used the market data approach, which is the study of other sales of property in the immediate area of the Morgan tract. Exhibit 7 is a map I made of the market data studies showing the location of properties and the sales of properties that I thought were relevant to this property. . . . “. . . I secured all of this material in order to determine in my own mind what I thought this property was worth based on the study of the market, and this is the best basis of comparison that we possibly have, is what the similar properties in the immediate area sell for. . . . These sales that I show are all sales of vacant land and are not sales of improved properties.” The witness then designated ten properties which had been sold in the vicinity of the land in question. He gave the size of the tracts, the location, date of sale and sale price. The tracts varied in size from one-third acre to thirty-five acres. The sales ranged in time from 1961 to 1966. The witness testified further: "Q. All right. Are those sales representative enough to you that they actually do give you a solid basis on which to form an opinion of the value of the Morgan tract in February, 1966? “A. I always make up a map like this for my own study so that I can get the relationship of the sales to the subject property, and I think that fits into a very positive pattern around this property, as to its logic for rezoning for apartments and the pattern as to sale prices. It is always some variance in sales, but they show a pattern that lead me to believe the value I established.” We find no basis for the appellant’s complaint. In City of Wichita v. Jennings, 199 Kan. 621, 433 P. 2d 351, we held: “Under the rules of evidence, K. S. A. 60-401, et seq., an expert witness, on direct examination, may testify as to the purchase price of specific tracts of neighboring land in a condemnation proceeding.” (Syl. ¶ 4.) It was stated in the opinion: “As all exclusionary rules were wiped out and none were reinstated as to the use of the purchase price of a specific tract of neighboring land to prove value, we are forced to conclude that the legislature intended to do away with the exclusion. “It must be understood, however, that such evidence must present the purchase price of a sale of comparable land which was not so remote as to time and distance as to be irrelevant. The determination of this fact is to be left to the sound discretion of the trial court. Most of such factors go more to the weight to be given the testimony than its admissibility.” (p. 625.) The expert’s opinion of value is the primary evidence under submission to the jury. Sales of comparable properties are offered in condemnation cases more often as supportive of the reasoning by which the expert arrives at his opinion rather than a direct indicia of value. In the recent case of City of Bonner Springs v. Coleman, 206 Kan. 689, 481 P. 2d 950, we state: “It must also be understood that once a witness has qualified as an expert, a court cannot regulate the factors he uses or the mental process by which he arrives at his conclusion. These matters can only be challenged by cross-examination testing the witness’ credibility.” (p. 695.) It must also be understood, however, that the responsibility of defining the extent of compensable rights is in the courts and if it is established that value testimony was based on noncompensable items or the credibility of the testimony is otherwise destroyed the testimony should be stricken in response to a proper motion. In Sacramento, etc. Drainage Dist. ex rel. State Reclamation Bd. v. Reed, 215 C. A. 2d 60; 29 Cal. Rptr. 847, we find the rule stated as follows: "... A condemnation trial is a sober inquiry into values, designed to strike a just balance between the economic interests of the public and those of the landowner. (See Kratovil and Harrison, Eminent Domain — Policy and Concept, 42 Cal. L. Rev. 596, 626.) There is a limit to imaginative claims even when described in terms of a prospective buyer’s mental reactions. To say that only the witness’ valuation opinion has probative value, that his ‘reasons’ have none, ignores reality. His reasons may influence the verdict more than his figures. To say that all objections to his reasons go to weight, not admissibility, is to minimize judicial responsibility for limiting the permissible arena in condemnation trials. The responsbility for defining the extent of compensable rights is that of the courts. . . .” (p. 69.) The same rule would apply to appellant’s suggestion that the expert witness should not have been permitted to adjust the sale price of other lands considered to reflect price increase. The appellant’s next four contentions are closely related and may be combined. The appellant contends that the court erred in admitting an exhibit and testimony in connection therewith, the exhibit being an architectural rendition of a five-story, sixty-three foot high apartment building when on the date of the taking the maximum height permitted by the zoning ordinance was two and one-half stories, thirty-five feet high; the court should have directed a verdict in favor of appellant as all of the appellees’ evidence as to highest and best use was based on a five story apartment building, and the court failed to properly instruct the jury under the circumstances. It appears to us that the instruction properly states the law. It followed PIK 11.11. The appellant complains that “It was prejudicial to the appellant not to have the jury told by the Court that such use was illegal.” The question was not so much the fact that the existing zoning prohibited the suggested use but rather was there a reasonable probability of it being later rezoned to permit such use. In Orgel on Valuation Under Eminent Domain, relied on by appellant, we find the following statement in Volume 1, Section 34, page 165: “Conceding that the potential use of the property for illegal purposes is speculative, may the jury consider the possibility that a use now illegal may later become legal? If this possibility is not too remote, die use may have some effect on the present market value, for the purchaser may buy with an eye to the likelihood of removing the legal restriction. Must the use be disregarded entirely because it is at present illegal or may the chance of legalizing it be considered? . . . “It appears, therefore, that the future use may be considered if it is probable that it will be made available and the contrary decisions turn merely on the facts as to the likelihood of legalization. . . .” Also in Section 34, at page 167, it is stated: “The courts have had little difficulty in reaching what seems to us to be a proper result in cases involving zoning ordinances. It is generally held that although an ordinance may prohibit the use of the property for certain purposes at the time of condemnation, yet if there is a reasonable probability that the ordinance may be changed or an exception made, the value for that purpose as affected by the existing ordinance may be considered.” In Nichols on Eminent Domain, Volume 4, § 12.322 [1], p. 238, we find the rule stated as follows: “Where the enactment of the zoning restriction is not predicated upon the inherent evil of the proscribed use — in other words, where the forbidden use is malum prohibitum rather than malum in se — and there is a possibility or probability that the zoning restriction may in the near future be repealed or amended so as to permit the use in question, such likelihood may be considered if the prospect of such repeal or amendment is sufficiently likely as to have an appreciable influence upon present market value. It follows from the foregoing that such possible change in the zoning regulations must not be remote or speculative.” (See, also, Board of Park Commissioners v. Fitch, 184 Kan. 508, 337 P. 2d 1034.) The facts here are somewhat unusual. At the date of the taking, the general zoning ordinance limited apartment buildings to a height of thirty-five feet and two and one half stories. In less than a year after the taking, and before this case was tried, the zoning ordinance was changed permitting high-rise and semi-high-rise apartment structures. It would appear that appellant’s planning consultant was working on a recodification of the new zoning code at the time the land was taken. We see no merit in appellant’s contention that there was no reasonable probability that rezoning would take place permitting high-rise apartments. The fact that the zoning was so changed in less than a year speaks with more emphasis than the testimony of experts to the effect that there is a reasonable probability that a zoning ordinance will be changed. However, there was substantial competent evidence that the zoning ordinance would have been recodified to permit five-story apartments and there was also substantial competent evidence of a reasonable probability that the tract under consideration would have been rezoned for apartment construction. The planning consultant for appellant testified: “As a consultant to the city, I worked on a new zoning code for at least a year prior to the time it was adopted. The city planning commission and the council did not spend that much time on it. During that time, the fact that there was going to be a new zoning recommendation and a new zoning code was not a secret, but I do not know how widespread the knowledge was. . . The testimony of one of appellees’ witnesses is summarized in the record: “Based on my familiarity with the Morgan tract and my familiarity and knowledge of the area based upon the considerations that would be taken into account by any zoning board, it would have been very logical to have rezoned the Morgan tract for apartments to accommodate the plan I have described because of the development of apartments in the area. The number of apartments that have been zoned in the area and the obvious trend to apartments for the area would indicate that this should he an apartment development in order to best use and utilize the land to its greatest advantage. ‘It was my opinion that a prudent zoning authority should rezone it’ to accommodate this plan.” Another of appellees’ witnesses testified: “. . . Based upon my familiarity with the zoning rules and regulations in Overland Park, and based upon my experiences before the zoning authorities there and also my acquaintance with zoning procedures, by virtue of my appointments by the City, in my opinion this property had very good chance to be re-zoned to accommodate apartments because it was a continuation of zoning. The zoning was right across the street. . . .” Appellant contends that James W. Starnes has acquired a contractual interest in the property and is a real party in interest. The record does not disclose what interest he may have, if any. As the matter was not presented to the trial court it will not be considered by this court on appeal, particularly where there would have to be an investigation outside the record to determine the nature of the interest, if any. In no way could the rights of appellant be affected. Under the provisions of K. S. A. 26-502, the only obligation as to parties insofar as the condemner is concerned is to name in the petition the owners and all lienholders of record and the name of any party in possession. If Starnes had an equitable interest and did not disclose it, appellant’s rights would not be affected. A careful examination of the record and the errors alleged by appellant disclose no prejudicial error which would justify the granting of a new trial. The judgment is affirmed. approved by the court.	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The opinion of the court was delivered by Schroeder, J.: This is an interlocutory appeal by the state pursuant to K. S. A. 1970 Supp. 22-3603, wherein the trial court sus tained the defendant’s motion to suppress certain physical evidence and a statement given to an agent of the Federal Bureau of Investigation. The questions pertain to the propriety of tire trial court’s action in sustaining the defendant’s motion. On the 27th day of August, 1970, a telephone call was received by the Overland Park police department from an individual identifying himself as Pat Boyle. Pat had been placed in charge of the family home at 9710 West 91st Street Terrace in Overland Park, Kansas, while his parents were on vacation. Pat requested the Overland Park police department to go to his parents’ home at the above address and remove three cases of dynamite which his younger brother had stored in die home. After verifying the authenticity of the call, Overland Park police officers were dispatched to the residence. Upon arrival, they were met by Mary Elizabeth Boyle, a younger sister of Pat Boyle, who resided in the residence. She was awaiting the police at the neighbors across the street from the residence. At that time she stated to the police her brother, Michael Boyle, had three cases of dynamite in the house and that she wanted the officers to enter the house and remove the dynamite. In compliance with Mary’s request, the officers approached the home and could see through the basement garage windows, where they were able to observe three cases of dynamite stacked in the garage. At that time a person named Michael H. Boyle.(defendantappellee), brother of Pat and Mary, came out of the garage door, at which time one of the Overland Park police officers placed him under arrest for the possession of dynamite, and directed him to proceed back through the garage and family room of the home to the front door where other officers were attempting to gain entry. As the arresting officer and Michael Boyle proceeded through the house, the officer again observed the three cases of dynamite partially covered with a blanket in the basement garage of the home, and on passing through the family room, also observed what appeared to him to be marijuana. When Michael Boyle and the arresting officer arrived at the front door, Charles Young, a companion of Michael, had opened the door and allowed the officers at the front of the house to enter. (Young denies that he voluntarily let the officers in the front door.) At that point Sergeant Gary Casida of the Overland Park police department, who had entered by way of the front door, asked Michael Boyle if he had any dynamite in the house, and Michael answered in the negative. Sergeant Casida then asked Michael if he had any objection to them looking around the house and Michael replied that he did not have any objection. The officers then walked back through the house and observed the previously mentioned marijuana and also the three cases of dynamite in the basement garage, partially covered with a blanket. At that time the officers did not attempt to move the dynamite, but awaited an army demolition team called from Fort Riley, Kansas. While awaiting the arrival of the demolition team, officers of the Overland Park police department proceeded to the Johnson County courthouse where they appeared before the judge of the magistrate court and made application for a search warrant for the premises in question. At 2:03 in the afternoon on the 27th day of August, 1970, a search warrant was issued. The search warrant discloses that the court found from the evidence heard there was probable cause to believe that an offense against the laws of the state had been committed, and it directed a search for dynamite and marijuana— described as contraband, or fruits, instrumentalities or evidence of such offense — located in or upon the premises. Upon execution of the warrant the police recovered from the residence three cases of dynamite, two disposable needles, one needle and syringe, one plastic bag and contents (marijuana), two hand-rolled cigarettes, and one hash pipe. This was the physical evidence the trial court suppressed upon the defendant’s motion. Later that same day, but after the initial entry into the residence, a formal written consent to search the home was obtained by the Overland Park police officers from Mary Elizabeth Boyle. Following the arrest of Michael Boyle he was transported to the Overland Park police department where he was advised of his rights under the Miranda decision at 1:50 p. m. At that time he declined to sign a rights waiver and the Overland Park police officers did not continue questioning him. Shortly thereafter, at 2:26 p. m. on the same day, agents of the Federal Bureau of Investigation arrived and commenced questioning Michael Boyle. At the outset of the inquiry they did not advise Michael of his rights pursuant to the Miranda decision, but rather waited until it became apparent that there was a possible federal violation involved, at which time they did advise Michael of his rights and he signed a waiver. The following day, August 28, 1970, Michael Boyle was charged by complaint in the magistrate court of Johnson County, Kansas, with criminal violations. The complaint was amended on September 14, 1970, charging him with advocating the overthrow of the government by violence (K. S. A. 1970 Supp. 21-3802); conspiracy to commit arson (K. S. A. 1970 Supp. 21-3302); burglary (K. S. A. 1970 Supp. 21-3715); theft of property of the value of less than $50 (K. S. A. 1970 Supp. 21-3701); possession of an explosive with intent to commit a crime (K. S. A. 1970 Supp. 21-3731); and possession of marijuana (K. S. A. 65-2502). At the preliminary hearing on September 15, 1970, the defendant was bound over to the district court for trial on all of the above charges except the one charging him with advocating the overthrow of the government by violence, which the magistrate court dismissed. On the 23rd day of September, 1970, the defendant was formally arraigned in the district court of Johnson County, Kansas, and entered a plea of not guilty to each of the five counts for which he had been bound over. After several continuances of the trial setting at the defendant’s request, the defendant on March 5, 1971, filed a motion to suppress certain physical evidence as well as a statement made to an agent of the Federal Bureau of Investigation. It is from the order of the trial court sustaining the defendant’s motion that the state has duly perfected an appeal to this court pursuant to 22-3603, supra. Did the trial court err in sustaining the defendant’s motion to suppress certain physical evidence? At the hearing on the motion to suppress, Pat Boyle testified drat although he did not five at the residence located at 9710 West 91st Street Terrace in Overland Park, Kansas, he had been left in charge of and responsible for that residence during the time that his parents were away on vacation. Further, Mary Elizabeth Boyle testified that she was 18 years of age, a sister of both Pat and Michael, and did in fact reside at the family home at the above address on the 27th day of August, 1970. On that date Mary observed her brother, Michael, in the basement garage of the home where he had in his possession three cases of dynamite. When Mary first called Pat at the City National Bank in Kansas City, Missouri, where he worked, concerning Michael’s possession of the dynamite, she informed Pat that Michael was talking crazy. She said she was frightened and Pat directed her to go across the street to the neighbors and await the arrival of the police. Captain John Patton, in charge of the detective division of the Overland Park police department, testified that he received the call from Pat Boyle on the 27th day of August, 1970, who at that time “advised him (Patton) that Boyle’s younger sister, Mary Elizabeth, had called him at work and stated that she was frightened inasmuch as her other brother, Michael H. Boyle, had some dynamite in the basement of the house and was talking crazy.” Both Pat Boyle and Mary further testified they had called or personally talked to officers of the Overland Park police department and both had specifically requested that these officers go to the residence at 9710 West 91st Street Terrace in Overland Park, Kansas, and remove the three cases of dynamite in question from the home. It has long been a well settled rule of law in both the federal and state courts that the constitutional immunity from unreasonable searches and seizures may be waived by a consent to a search or seizure. In Zap v. United States, 328 U. S. 624, 90 L. Ed. 1477, 66 S. Ct. 1277, the rule is stated: “. . . the law of searches and seizures as revealed in the decisions of this Court is the product of the interplay of the Fourth and Fifth Amendments. But those rights may be waived. . . .” (p. 628.) (Emphasis added.) Kansas decisions holding to the same effect are State v. Miles, 206 Kan. 748, 751, 481 P. 2d 1020; and State v. Zimmer, 198 Kan. 479, 500, 426 P. 2d 267, cert. denied 389 U. S. 933, 19 L. Ed. 2d 286, 88 S. Ct. 298.) Once it is recognized that the constitutional right of individuals to be secure against unreasonable searches and seizures may be waived, the question arises as to whether a joint occupant of certain premises can give consent to search such jointly occupied premises and bind the other joint occupant by such consent. This court has recently held, where two or more persons jointly occupy living quarters, the consent of one of them is sufficient to form the basis for a valid search. (State v. McCarty, 199 Kan. 116, 427 P. 2d 616, cert. denied as to McCarty 392 U. S. 309, 20 L. Ed. 2d 1115, 88 S. Ct. 2065; and State v. Boyd, 206 Kan. 597, 600, 481 P. 2d 1015; and cases cited in these decisions.) Here the police officers, on the uncontradicted evidence presented by the record, had authority to enter and search the home in question for dynamite by reason of the voluntary consent given them by both Pat Boyle and Mary Elizabeth Boyle. Each was in a position of authority to give such consent. Furthermore, after the initial lawful entry into the home, Michael Boyle gave the police officers consent to search the house. The appellee contends that the police officers’ knowledge of the circumstances was limited to their conversation with Pat and Mary; that there was no report or any information regarding stolen goods, burglaries or theft; that the police had no knowledge of the appellee from their own sources and did not even bother to obtain a description of him; and the fact that they arrested the appellee at the particular time and place in question rather than someone else was only coincidental. The appellee argues the record does not contain any information reflecting that he obtained the dynamite illegally nor that its presence or possession was in any sense illegal or wrong or in any way improper. The appellee concludes the search and seizure was unlawful because the officers did not have a warrant for an arrest or for search and seizure which they had sufficient time to get, if probable cause existed. It must be conceded that an arrest with or without a warrant must be founded upon more than mere suspicion. The language of the Fourth Amendment to the United States Constitution, that no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the persons or things to be seized applies to arrest as well as search warrants. (Giordenello v. United States, 357 U. S. 480, 2 L. Ed. 2d 1503, 78 S. Ct. 1245.) The quantum of information which constitutes probable cause— evidence which would warrant a man of reasonable caution in the belief that a felony has been committed — must be measured by the facts of the particular case. (Carroll v. United States, 267 U. S. 132, 69 L. Ed. 543, 45 S. Ct. 280, 39 A. L. R. 790.) But as we view the facts here, the police officers’ authority to enter the residence in question and search for the dynamite was not dependent upon an arrest of the appellee. Here there was no seizure of contraband or evidence of crime until after a valid search warrant was issued. Only unreasonable searches and seizures are prohibited by the Fourth Amendment. The search made here with valid consent was not unreasonable. It has been said the test of reasonableness cannot be stated in rigid or absolute terms, and that each case is to be decided on its own facts and circumstances. (State v. Crouch, 192 Kan. 602, 604, 389 P. 2d 824.) Here the need to protect life or avoid serious injury is justification for what might otherwise have been illegal absent an exigency or emergency. On the uncontradicted facts in this case the police were confronted with exigent circumstances. An 18 year old girl had called her older brother, who was at work in Kansas City, Missouri, and advised him that she was frightened due to the fact that her brother, Michael, was at the family home, had three cases of dynamite in his possession, and was “talking crazy.” The residence which allegedly contained the dynamite was located in a residential area, surrounded by other homes, and within approximately one block of an elementary school. With this information the Overland Park officers immediately responded to the call for assistance by going to the residence in question, and their entry into the residence, as well as their subsequent observations were justified by the exigency of the situation. Where “exigent circumstances,” referred to in Miller v. United States, 357 U. S. 301, 2 L. Ed. 2d 1332, 78 S. Ct. 1190, exist the business of policemen is to act, not to speculate or meditate on whether the report is correct. People could well die in emergencies if police tried to act with the calm deliberation associated with judicial process. We cannot subscribe to the concept of criminal justice, asserted by the appellee, in which form governs substance. Form is of genuine importance in the law, for the law is form in a sense, but there are limits. We reject the idea that society can be frustrated and denied reasonable protection by mechanical adherence to formalism. Here the police were not required to lay siege to the residence to await a search warrant while lives may have been at stake. (Wayne v. United States, 318 F. 2d 205 [D. C. Cir. 1963].) On the facts here presented the dynamite was contraband only if it was possessed by the appellee with the intent to use it to commit a crime. (K. S. A. 1970 Supp. 21-3731.) The uncontradicted evidence was that the appellee had three cases of dynamite at the family home in his possession and was “talking crazy” according to Mary Elizabeth Boyle, his younger sister. This was sufficient for the police to act under the circumstances. The police officers were lawfully on the premises here in question in response to a citizen s call for help, and while lawfully on the premises observed contraband or evidence of crime in the form of both dynamite and marijuana in open view. It has long been settled that objects falling in plain view of an officer who has a right to be in the position to have that view, are subject to seizure and may be introduced into evidence. (Harris v. United States, 390 U. S. 234, 19 L. Ed. 2d 1067, 88 S. Ct. 992.) Numerous cases have held that looking through a window does not constitute an unreasonable search. (People v. Willard, 238 C. A. 2d 292, 47 Cal. Rptr. 734, and cases cited therein.) In State v. Blood, 190 Kan. 812, 378 P. 2d 548, this court said: “. . . It has been held that the eye cannot commit a trespass condemned by the Fourth Amendment. (See, McDonald v. United States [1948], 335 U. S. 451, 93 L. Ed. 153, 69 S. Ct. 191.) Observation of that which is in plain view is not a search. (State v. Campbell [Mo. 1953], 262 S. W. 2d 5; State v. Hawkins, [1951], 362 Mo. 152, 240 S. W. 2d 688; and State v. Harre [Mo. 1955], 280 S. W. 2d 41.) “In Ellison v. United States [1953], 206 F. 2d 476, the United States Court of Appeals for the District of Columbia Circuit, said: “'. . . Nor were they guilty of any impropriety in allowing their eyes to wander while they were waiting on the porch. The bottles and cigarettes were not covered or hidden, though it may have been necessary to bend over the porch rail to see them. There was no intrusion into appellant’s privacy. Nor did mere observation constitute a “search.” If an officer sees the fruits of crime — or what he has good reason to believe to be the fruits of crime — lying freely exposed on a suspect’s property, he is not required to look the other way, or disregard the evidence his senses bring him. Law enforcement is difficult enough, without requiring a police officer to free his mind of clues lying flatly before him.’ (p. 478.) “An officer lawfully on the premises or in a public place can always seize property which is open to his view, if he has reasonable cause to believe it is being kept or used in violation of the law. (Ellison v. United States, supra.) There is no contention that the troopers were not officers or that they were not in a public place or lawfully on the premises where the search was made.” (pp. 819, 820.) The testimony established that a valid search warrant was obtained after the officers had been dispatched to the residence in call for help, and after they had viewed certain items of contraband which were in open view while they were lawfully on the premises. Once an officer has observed such contraband in open view, while being lawfully at a particular location, these observations may be used to establish probable cause for the issuance of a search warrant. (State v. Yates, 202 Kan. 406, 449 P. 2d 575.) An agent of the Federal Bureau of Investigation, Thomas Den Ouden, testified that he had occasion to investigate the possession of three cases of dynamite possessed by Michael Boyle on August 27, 1970, by reason of information received from the Overland Park police department. He and another agent had a conversation with Michael and did not advise him of his rights until it became apparent, after approximately ten minutes, that there might be a federal violation involved. Michael was then advised of his rights pursuant to Miranda. Michael indicated he understood them and signed a waiver of rights form, whereupon he gave a statement to the officers in which he made certain admissions and confessions regarding the dynamite and its intended use. The only admission made prior to having been advised of his rights pertained to the intended use of the dynamite. Michael had previously been advised of his rights under Miranda by the Overland Park police officers; but he refused to sign a waiver of rights form, and the Overland Park police officers did not question him. The rule has emerged following the decision in Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A. L. R. 3d 974, that once the mandate of Miranda is complied with at the threshold of the interrogation by law enforcement officers, the warnings need not be repeated at the beginning of each successive interview. To adopt an automatic second warning system would be to add a perfunctory ritual to police procedures rather than provide the meaningful set of procedural safeguards envisioned by Miranda. (Gorman v. United States, 380 F. 2d 158, 164 [1st Cir. 1967]; People v. Hill, 39 Ill. 2d 125, 233 N. E. 2d 367; Miller v. United States, 396 F. 2d 492 [8th Cir. 1968]; and United States v. Osterburg, 423 F. 2d 704 [9th Cir. 1970].) The refusal of the appellee to sign a rights waiver form for the Overland Park police officers is not tantamount to an assertion that he did not desire to be questioned on the matter. His voluntary response to inquiry by the F. B. I. agents after the initial warning was an effective waiver. The circumstances under which the appellee made his statement to the F. B. I. agents does not even suggest that the appellee invoked his privilege, or that his statement was the product of compulsion. For the reasons heretofore stated we find the trial court erroneously suppressed the physical evidence and the statement given to an agent of the Federal Bureau of Investigation. The state has sustained its burden of proving the challenged evidence to be admissible. The judgment of the lower court is reversed and the case remanded for further proceedings consistent with the views expressed in this opinion.	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The opinion of the court was delivered by Fromme, J.: This appeal follows a trial which resulted after a two car accident at an intersection in the city of Ottawa, Kansas. The plaintiff, Raymond P. Daugharthy, was awarded a jury verdict of $10,000 and the defendant, Dana Bennett, appeals from the judgment. We will continue to refer to the parties as plaintiff and defendant. The accident occurred in the intersection of 8th and Hickory Streets. There is no “stop” or “yield” sign at this intersection. A greenhouse is located on the southeast corner and it limits vision diagonally. Plaintiff was traveling east on 8th Street. Defendant was traveling north on Hickory Street. A “slow” sign had been placed on the south side of 8th Street just west of the pedestrian crosswalk along the west side of Hickory Street. Both drivers were familiar with this intersection and with the location of the slow sign and of the greenhouse. The accident occurred at eight o’clock in the morning on September 25, 1967. The weather was clear. Both streets were paved with brick and they were dry. The plaintiff testified he was traveling east on 8th Street at a speed of from 15 to 20 miles per hour. The maximum speed was 30 miles per hour. Just before entering the intersection he looked to the right and then to the left. He saw no vehicles and proceeded into the intersection. He heard the squealing of tires on his right, applied his brakes and was hit by defendant’s car. The point of impact was in the southwest quadrant of the intersection. Plaintiff’s car had not yet reached the center line of Hickory Street. The defendant’s car was traveling in the left lane of Hickory Street as it entered the intersection. The front of defendant’s car hit the right side of plaintiff’s car. After impact plaintiff’s car traveled 53 feet and ended up over the curbing at the northeast corner of the intersection. Defendant’s car stopped on impact and rolled a few feet backwards toward the curbing at the southwest corner. The city police officer who investigated the accident testified that defendant’s vehicle left 54 feet of tire marks on the pavement before reaching the point of impact. Plaintiff’s vehicle left no tire marks before reaching the point of impact. The officer had no opinion on the speeds of these vehicles. The defendant testified he was on his way to school. He had picked up one friend and was on his way to pick up another. He was 16 years of age at the time of this accident. Before reaching the intersection he had come upon another car occupying the right lane of Hickory Street. He then turned into the left lane, passed the parked car and continued for some distance in the left lane before seeing plaintiff’s car. He applied his brakes but was unable to stop before hitting plantiff’s vehicle. It appeared to defendant that plaintiff increased his speed on entering the intersection. A passenger in defendant’s car testified they were traveling from 25 to 30 miles per hour. The maximum speed limit was 30 miles per hour. Defendant raises two points of error on appeal. First, he says the court erred in failing to sustain his motion for a directed verdict since plaintiff was contributorily negligent as a matter of law; and second, the trial court erred in refusing to give certain requested instructions. Both claims of error relate to the duties alleged to have been imposed upon plaintiff by the “slow” sign located on 8th Street. The substance of defendants contentions are contained in two requested instructions which the court refused. These instructions read: “The laws of Kansas provide that preferential right of way at an intersection may be indicated by a ‘slow’ sign. The driver of a vehicle approaching a ‘slow’ sign shall slow down to a speed reasonable for the existing condition, or shall stop if necessary, and shall yield the right of way to any vehicle in the intersection or approaching on another highway so closely as to constitute immediate hazard. The driver having so yielded may proceed, and the driver of all other vehicles approaching the intersection should yield to the vehicle so proceeding. “The Kansas law states further that if a driver is involved in a collision with a vehicle in the intersection after driving past a ‘slow’ sign without stopping, such collision shall be deemed prima facie evidence of his failure to yield the right of way. By prima facie evidence’ is meant a permissible presumption which, however, is not conclusive, but subject to being rebutted or explained. In the absence of contrary evidence, it will support an affirmative finding on the issue involved.” All standard instructions were given to the jury on the law applicable to accident cases at uncontrolled intersections. Defendant concedes he can find no statute in Kansas which relates to the duties imposed upon a motorist by a “slow” sign. He argues that those duties should be and are the same as those imposed by a “yield” sign. Let us examine pertinent provisions of the Kansas Act Regulating Traffic on Highways (K. S. A. 8-501 et seq.). A motorist shall not drive a vehicle at a speed greater than is reasonable and prudent under the conditions then existing. (K. S. A. 8-532 [a].) When approaching and crossing an uncontrolled intersection a motorist shall drive at an appropriate reduced speed. (K. S. A. 8-532 [c].) K. S. A. 8-552 (now 1970 Supp.) provides: “(a) Preferential right of way at an intersection may be indicated by stop signs or yield signs as authorized in section 8-568 of the General Statutes of 1949 as amended [now K. S. A.]. “(b) [This section relates to a stop intersection and is not pertinent.] “(c) The driver of a vehicle . . . approaching a yield sign shall in obedience to such sign slow down to a speed reasonable for the existing conditions, or shall stop if necessary . . . and shall yield the right of way . . . to any vehicle in the intersection or approaching on another highway so closely as to constitute an immediate hazard. Said driver having so yielded may proceed, and the drivers of all other vehicles approaching the intersection shall yield to the vehicle so proceeding: Provided, however, That if such driver is involved in a collision with a . . . vehicle in the intersection after driving past a yield sign without stopping, such collision shall be deemed prima facie evidence of his failure to yield right of way.” We note that under paragraph (a) of this statute preferential right-of-ways are indicated by “stop” signs and by “yield” signs. “Slow” signs are not included. The manual on uniform traffic control devices adopted by the state highway commission makes no reference to “slow” signs. We find no mention of such a sign in the Kansas statutes and none in the regulations promulgated by the commission. (See Kansas Administrative Regulations, 36-10-1.) Local authorities are authorized by K. S. A. 8-568 to erect “stop” signs and “yield” signs on highways under their jurisdiction to indicate preferential right-of-ways at. intersections. The consequences for failing to stop at such an intersection are set forth in K. S. A. 8-552 (c) and any collision resulting after failure to stop shall be deemed prima facie evidence of failure to yield right-of-way. The duties of a driver on approaching a “yield” intersection were recently examined by this court in Harbaugh v. Darr, 200 Kan. 610, 438 P. 2d 74. The defendant would have us equate the duties of a motorist on approaching a “slow” sign with those of a motorist approaching a “yield” sign. He cites no Kansas cases. In several jurisdictions we find specific statutes pertaining to “slow” signs and to the care required of a driver on approaching such a sign. Cases from these jurisdictions are not persuasive in view of their statutes. The subject is explored in the annotation appearing in 3 A. L. R. 3rd § 5, p. 518. The case of In re Estate of Magie, 187 Kan. 753, 360 P. 2d 6, cited by defendant, is not helpful for the intersection involved in Magie was controlled by three consecutive signs, a “slow” sign, a “T” intersection sign and a “yield” right-of-way sign. The duties and obligations imposed by statute upon a motorist entering a “stop” or a “yield” intersection do not apply in the case of a motorist approaching or entering an intersection after passing a “slow” sign. A “slow” sign is generally considered to be a warning that some special hazard exists ahead by reason of highway conditions. It is a warning to reduce speed if traveling at or near the maximum speed limit and to proceed with care. (In the present case plaintiff was driving 15 to 20 miles per hour in a 30 mile per hour zone.) It may warn of various highway hazards including but not limited to intersections, curves, hills and rough road conditions. It is used to warn a motorist of various highway conditions which make it hazardous to continue traveling at the maximum speed limit allowed. It may be placed to warn of a multitude of hazards. In Kansas its use is not authorized by statute to establish a preferential right-of-way and it is not suited by custom or usage for that purpose. We do not know the particular highway hazard to which the “slow” sign in the present case referred. It may have been placed to warn of the hazard at the intersection resulting from the location of the greenhouse. It may have been placed to warn of the hazard of a dip or depression in the street which traffic encounters before entering the intersection of Hickory Street. In any event a “slow” sign is not recognized by statute to establish a preferential right-of-way at an intersection. Since the use of a “slow” sign cannot establish a preferential right-of-way it follows that such a sign places no greater duty upon a motorist than is required by K. S. A. 8-532 (c) on approaching any uncontrolled intersection. That duty is to drive at an appropriate reduced speed when approaching and crossing the intersection. Therefore under the facts of this case both drivers had the same duty of care. The requested instructions were properly refused. We turn next to defendants contention the court erred in failing to sustain his motion for a directed verdict since plaintiff was contributorily negligent as a matter of law. What has been said largely disposes of the basis for this contention. Contributory negligence is generally a question of fact to be determined by the jury under the circumstances of each particular case and it is not a question of law to be determined by the court. (Newman v. Case, 196 Kan. 689, 413 P. 2d 1013; Bingham v. Hillcrest Bowl, Inc., 199 Kan. 40, Syl. ¶ 2, 427 P. 2d 591; Smithson, Executor v. Dunham, 201 Kan. 455, 441 P. 2d 823; Kirsch v. Dondlinger & Sons Construction Co., Inc., 206 Kan. 701, 482 P. 2d 10.) Following the rule set forth in the foregoing cases we cannot say as a matter of law under the facts of this case that plaintiff failed to use reasonable care as he approached and entered the intersection. The jury fairly decided that question. One final matter should be mentioned before concluding this opinion. Since defendant filed no motion for judgment notwithstanding the verdict much of plaintiff’s brief and defendant’s reply brief is devoted to procedural questions which would have arisen in event of a reversal. What has been said in this opinion requires an affirmance. Anything we might say as to the procedural questions briefed by the parties would be dicta since it would reach beyond the requirements of the case and have no effect upon the ultimate rights of the parties. See Kendig v. Kretsinger, 197 Kan. 186, 415 P. 2d 250 and Taylor v. State, 198 Kan. 648, 426 P. 2d 159. Accordingly we decline to answer the procedural questions posed in the briefs. The judgment is affirmed.	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