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Ross and McKINSTRY, J.J., (concurring.) We concur in the judgment, on the ground that the executors of the deceased, Swift, cannot sustain the action. Whether or not any other person or persons can do so, it is not necessary, we think, to decide. That the donation in question formed no part of the estate of the deceased cannot be doubted; and that the rights of the plaintiffs, as executors, are limited to the estate of their testate seems to us equally clear.

SUPREME COURT OF KANSAS.

(34 Kan. 254)
BISHOP v. MUGLER.
Filed October 9, 1885.
REIHEARING—MOTION DENIED.

Motion for rehearing.

J. G. Mohler, for plaintiff in error.

Garver & Bond, for defendant in error.

PER CURIAM. The opinion in this case was filed at the last February session of this court. 5 Pac. Rep. 756. The first appearance made here in the case, by or on behalf of the defendant in error, was in this application for a rehearing. Notwithstanding his tardy appearance, and his failure to file a brief or to present any argument on the case when it was originally submitted, we have re-examined the points made by him in his motion, and find no occasion to change the conclusion at which we arrived in our former opinion. He now insists that we misconceived and overlooked portions of the record. It is true, as he states, that the alternative writ contains an allegation that BISHOP, the justice of the peace, refused to recall the jury for a delivery of their verdict, but the court below, in its finding and judgment, recites that the duty which the justice refused to perform was the reception and filing of a sealed verd?ct, and not that he failed to reassemble the jury. The testimony in the case all agrees, that the justice of the peace endeavored to bring the jury together, and the testimony offered by Mugler was that the officer, pursuant to the direction of the justice, searched for the absent juror from 9 o'clock in the morning, when the jury should have reassembled, until 3 o'clock in the afternoon, when the officer returned and reported to the justice of the peace that no trace of the missing juror could be found. We are still of the opinion that a reasonable effort to reconvene the jury was made by the justice.

Our attention is also called to a stipulation in the entry of the findings and judgment of the court below stating that the verdict might be received from the foreman of the jury, or other person in whose hands it might be, without again bringing the full jury before the justice, and that the same should be considered as if delivered in open court and in the presence of the whole jury; and it is said that this stipulation amounts to a waiver of any error in the district court; but we think not. Manifestly there was no such intention. It is evident from the record that before the agreement was made the questions at issue in the case had been determined against the plaintiff, and judgment entered ordering the issuance of a peremptory mandamus. The stipulation had reference only to the execution of the peremptory writ which the court had erroneously awarded. There had been no agreement to dispense with the attendance of all the jury in rendering a verdict while the matter was before the justice of the peace. The one made was subsequent to the rendition of the judgment, which was then excepted to, and is not sufficient to preclude the plaintiff in error from having the case reviewed here. The motion will be denied.

(34 Kan. 254)
WESTERN NEws Co. v. WILMARTH.

Filed October 9, 1885.

REHEARING—PoinT NOT RAISED ON ORIGINAL HEARING. Where a case has once been submitted and decided, the supreme court will not, as a rule, upon a motion for rehearing, consider any question not presented upon the original hearing.

Error from Shawnee county. Motion for rehearing. See S. C. 6 Pac. Rep. 786.

Frank Patrick, for plaintiff in error.

Case & Moss, for defendant in error.

PER CURLAM. Upon the rehearing, the authority of McLaughlin v. Davis, 14 Kan. 168, is challenged by plaintiff in error, and we are asked to re-examine and overrule that decision. Unless that decision be overruled, the rehearing in this case must be denied. No attack was made upon McLaughlin v. Davis, supra, when this case was originally submitted to us, and we shall not now re-examine the question therein decided. “Where a case has once been submitted and decided, this court will not, as a rule, upon a motion for a rehearing, consider any question not presented upon the original hearing.” Headley v. Challiss, 15 Kan. 602.

(34 Kan. 245) ZIMMERMAN v. KNox.

Filed October 9, 1885

JUDGMENT-REVERSAL–INSTRUCTIONS. Where instructions are given that are not based on the evidence or the issues of the case, and which appear to have probably misled the jury, the judgment will be reversed and a new trial granted.

Error from Shawnee county.

Action was brought in the district court of Shawnee county against John D. Knox to recover for an alleged false imprisonment. In his petition the plaintiff states that on February 23, 1883, with his family, he started by rail from Topeka, Kansas, upon a journey to the state of California, and when he reached Garden City, in the western part of the state, he was arrested by an officer of Ford county, where he then was, and was compelled by force to leave the train; was taken into custody by said officer and retained under arrest for 24 hours,

at the expiration of which time, by his own exertions, he regained his liberty. He further states that he had been guilty of no criminal offense at or prior to that time; that no criminal proceedings had been instituted against him in the state of Kansas, nor had any civil or criminal process been issued by any court of the county of Ford; but that the defendant procured his arrest and imprisonment willfully and maliciously, without any probable cause therefor, and for the sole and only purpose of collecting from the plaintiff a certain demand of the defendant against the plaintiff, upon which no process of arrest was issued from any court, justice, or any officer of the said county of Ford. The plaintiff alleges that he has been put to great expense and trouble because of his arrest and detention, and that he has sustained damages for injury to his character, as well as for pain and mental anguish suffered by him; for all of which he prays damages in the sum of $10,000. For answer the defendant filed a general denial. At the June term, 1883, the cause was tried by a jury, and after the testimony had been concluded, the following, among other instructions, were given to the jury: Fifth. The allegation in the petition is that the plaintiff was arrested at the solicitation and instigation of the defendant solely for the purpose of collecting a debt. There is no allegation that the plaintiff was arrested under a warrant or process of any kind charging him with any criminal offense. In a civil action, a party may be arrested under certain circumstances; for instance, if you believe from the evidence that the plaintiff was in February, 1882, indebted to John D. Knox, and that at, about, or just before his arrest he was selling and disposing of his property for the purpose of leaving the state, without making any preparation or provisions for paying this debt, or of securing or satisfying it in some way, and that he was doing these things under such circumstances as would lead a man of ordinary caution and prudence to fairly and honestly believe that he was selling and disposing of his property, intending to leave the country and to avoid the payment of his debts, under such circumstances the defendant had the right to cause a warrant to be issued for the arrest and detention of the plaintiff, in order to secure the payment of his debt. It is not alone in criminal cases that a man can be arrested, but there are circumstances under which a man can be arrested under process in civil actions—one of the character and description I have just given you. Now, if you find this was the condition of affairs at the time of the departure of Zimmerman for California, and if you believe that he was acting in such a manner as would cause a man of ordinary prudence and caution to fairly and honestly believe that he was selling his property for the purpose of abandoning the country, and for the purpose of avoiding the payment of his obligations, (or debts,) and that he was then indebted to the defendant, and under such circumstances Knox caused the plaintiff's arrest, under process lawfully issued for that purpose, then your Verdict should be for the defendant; and whether there was any process issued in this case of the kind and character mentioned, in the county of Ford, is a matter for you to determine. The burden of proof rests with the plaintiff to show what the transaction Was. Seventh. But if the plaintiff has failed to satisfy you by a preponderance of the evidence that his arrest by the sheriff of Ford county, or by his deputy, was made without legal process authorizing such arrest, then the burden of proof would still be upon him to show that the arrest was made with mailee and without probable cause, because, in the absence of proof respecting the authority of the sheriff to make the arrest, the legal presumption would be that he had authority to do so. Eighth. If the plaintiff has proved to your satisfaction by a preponderance of the evidence that the arrest was made by the sheriff of Ford county, Kansas, or his deputy acting under him, without any process authorizing it, and that the defendant induced the sheriff of that county, or his deputy, to have the plaintiff so arrested and detained, then under such circumstances it would be unlawful, and the law is that the arrest so made was malicious and without probable cause; but under this theory the burden of proof rests with the plaintiff to show that the arrest was made without such process, and it is for you to determine whether there was any such process issued or not. Ninth. In this connection I instruct you that no warrant for the arrest of a party could be issued in a civil action before a justice of the peace to an officer in any county other than the county in which the action is pending, so that in this case your inquiry will be limited to the question as to whether the plaintiff was arrested by the sheriff of Ford county, or his deputy, under process issued by some competent legal tribunal in that county. Such a warrant could not be issued to the sheriff of Ford county by a justice of the peace in Shawnee county. Eleventh. Now with respect to the meaning of “reasonable grounds” or “probable cause” for arresting or detaining a person charged with, or suspected of being guilty of, an offense. Reasonable grounds or probable cause in law means such a state of facts, known to and influencing the person who made or caused to be made the arrest and detention, as Would lead a man of ordinary caution and prudence, acting reasonably and impartially, and without prejudice, to entertain an honest belief or strong suspicion that the person accused is guilty of the matters charged against him. To apply it to this case, if you find from the evidence that at or about the time of the departure of the plaintiff for California he was indebted to the defendant, and was then engaged in selling and disposing of his property for the purpose of leaving the state, and without making any preparations to pay his debts, and that his actions and conduct were such under the circumstances as would lead a man of ordinary caution and prudence to honestly and fairly believe that the plaintiff was so disposing of his property for the purpose of abandoning the state, and for the purpose of cheating and defrauding his creditors by placing his property out of their reach, and that under such circumstances the defendant caused and procured the arrest of the plaintiff upon a process issued by some competent judicial tribunal in the county of Ford to the sheriff of that county, then the defendant would be justifiable, and the plaintiff could not recover in this action. The question of the presence or absence of probable cause for a prosecution or arrest does not depend upon the question of the guilt or innocence of the accused, or upon the fact whether or not an offense has been committed. A person making a complaint against, or causing the arrest of another may act upon appearances, and if the apparent facts are such that a discreet and prudent man would be led to believe that the matters charged against the person arrested are true, the person who causes the arrest will be justified, although it turns out in fact that he was deceived and mistaken, and that the accused party was in fact innocent. Fourteenth. I further instruct you, if you find from the evidence that the defendant, in causing the plaintiff’s arrest, was actuated or influenced by malicious motives, and without probable cause, then you may, in your discretion, assess what in your judgment would be a reasonable sum as exemplary damages, or “smart money.” But if you find from the evidence that the defendant caused the plaintiff's arrest by the sheriff of Ford county or his deputy, and that such arrest was made without process authorizing it, but that such arrest Was made Without malicious motives, and under such cir

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