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$500 to appear at the next term; and the commissioner at the same time, on another charge of like nature, required the same person to give bail in the sum of $200 to appear at the next term, etc.; and one bond for $700 was taken. The proper cognizor having failed to appear, the bond was declared forfeited. MILLER and Dillon, JJ., decided that the bond taken was a substantial departure from the bonds required by the commissioner, and was not therefore obligatory on the sureties. See, also, Waugh v. People, 17 Ill. 563; Barringer v. State, 27 Tex. 553; Neblett v. State, 6 Tex. Ct. App. 316; State v. Buffum, 22 N. H. 267.
Counsel for the state concede the above authorities correctly state the general rule applicable to recognizances, but attempt to evade the force of these decisions by referring to section 154 of the Criminal Code. They say that the provisions of this section have made radical and sweeping changes in the common-law doctrine of recognizances, both as to their form and the liability of parties thereto. This section is as follows:
“No action upon a recognizance shall be defeated, nor shall judgment thereon be arrested, on account of any defect of form, omission of recital, condition of undertaking therein, neglect of the clerk or mayistrate to note or record the default of any principal or surety at the term or time when such default shall happen, or of any other irregularity; so that it be made to appear that the defendant was legally in custody, charged with a public offense, that he was discharged therefrom by reason of the giving of the recognizance, and that it can be ascertained from the recognizance that the sureties undertook that the defendant should appear before a court or magistrate for examination or trial for such offense."
We think, however, that the statute does not apply to such a case as the present. The recognizance is not defective on account of form, omission of recital, condition of undertaking, or for the neglect of any clerk or magistrate, or for any other irregularity. It is more than defective or irregular; it is utterly void. The recognizance is a substantial departure from the bond required by the district court. “Bonds to secure the appearance of a person charged with crime must be taken and executed in pursuance of the order of the proper court or officer." U. S. v. Goldstein's Sureties, supra.
In Indiana the statute provides that:
“No recognizance, undertaking, or bond taken in any criminal proceeding shall be void for want of form or of substance, or for omission of any recital or condition, or because the same was entered into on Sunday; nor shall the principal or surety be discharged, but the principal and surety shall be bound by such recognizance, undertaking, or bond to the full extent contemplated by the law requiring the same, and the sureties to the amount specified in such recognizance, undertaking, or bond. And no action upon such recognizance, undertaking, or bond shall be defeated for any want of form or substance, or for the omission of any recital or condition, or because the same was entered into on Sunday, or for the neglect of the clerk to indorse or record it; but the recognizors shall be bound thereby to the full extent specifiid therein. A recognizance may be recorded after execution has been awarded."
The supreme court of that state, in State v. Winninger, 81 Ind. 51, in referring to this statute, says that “a recognizance taken by a court without jurisdiction, or by an officer without authority, is void.” The sheriff was bound to pursue his authority strictly, and when he departed from it and required bail in excess of the order of the district court, he acted without authority, and the recognizance was as void as if he had no authority whatever to require bail. Waugh v. People, supra.
None of the decisions of this court, construing section 154 of the Criminal Code, are in conflict with this conclusion. The other questions presented in the briefs need not be noticed.
The judgment of the district court will be reversed, and cause remanded for a new trial.
(All the justices concurring.)
(34 Kan. 73)
SAMPLE V. SAMPLE.
Filed October 9, 1885. 1. APPEAL-REFUSAL TO ALLOW AMENDMENT TO PETITION - OVERRULING DE
In an action for partition, where one of several defendants files a motion to require the plaintiff to amend his or her petition,-First, by striking out certain matter designated in the motion as redundant and irrelevant; second, by separately stating and numbering the several causes of action supposed to be alleged in the petition,-and this motion is overruled by the court, and such defendant then files a demurrer to the petition, setting forth all the statutory grounds for demurrer, which demurrer the court overrules, and such defendant brings the case to the supreme court : held, that the supreme court will not reverse the order and judgment of the district court merely because the peti
tion may contain irrelevant and redundant matter. 2. PARTITION-PETITION BY WIDOW - ALLEGATIONS AS TO ANTENUPTIAL Cox
In such an action, where the plaintiff is a widow, and asks for partition of the real estate that belonged to her husband at the time of his death, and asks for only one-half of such real estate, held, that allegations in the petition concerning an antenuptial contract between herself and her husband, and concerning money and property delivered by her to her husband in pursuance of such antenuptial contract, and subsequent transactions concerning such
money and property, are irrelevant, redundant, and immaterial. 3. SAME-ALLEGATIONS AS TO WILL-CLAIM UNDER STATUTES OF DESCENT AND
And in such case, where the widow claims under the statutes of descent and distribution, and not under any will, held, that all allegations in the petition
concerning a will are irrelevant, redundant, and immaterial. 4. SAME-ALLEGATIONS AS TO HOMESTEAD INTEREST.
Also held, in such a case, that all allegations in the petition concerning a homestead interest in a part of the real estate are irrelevant, redundant, and
immaterial. 5. SAME-ALLEGATIONS AS TO APPOINTMENT OF EXECUTOR OR ADMINISTRATOR.
Also held, in such a case, that allegations in the petition concerning the appointment of an executor or administrator are not inconsistent with the action for partition, where it is further alleged that the personal property is amply
sufficient to pay all the debts of the estate and all the costs of administration. 3. SAME-CHARGING HEIR WITH FRAUDULENTLY OBTAINING DEED.
In such a case, where the petition further alleges that one of the heirs, who is also a deiendant in the action, had fraudulently procured a deed from the
deceased for a portion of the land, which deed had never been executed or delivereid, held, that such allegations do not necessarily constitute a separate and independent cause of action, but may be considered as constituting a part of
the facts constituting the cause of action for partition. 7. SAME-ALLEGATIONS AS TO TITLE-TRUST.
And in such a case, where the petition further alleges that the legal title to a portion of the land was in one of the heirs, a defendant in the action, and that such heir held the legal title in trust for the deceased at the time of his death, and that the deceased at the time of his death was the equitable owner of the land, held, that such allegations do not necessarily constitute a separate and distinct cause of action, but may be considered as a part of the allegations
constituting the cause of action for partition. 8. SAME-PARTIES TO ACTION FOR PARTITION.
Any person who has an undivided interest in real estate may commence an action for partition without joining with him or her as plaintiffs any of the other interested parties. The other interested parties may be made defendants. Error from Morris county. Maloy & Kelley and Ed. S. Waterbury, for plaintiff in error. Ritchie & Miller and Buck & Feighan, for defendant in error.
VALENTINE, J. This was an action brought by Elizabeth Sample against Matthew K. Sample and 12 others, to have the E. į of section 33, and the W. of section 34, township 14, range 19, in Morris county, Kansas, partitioned between them; the plaintiff claiming an undivided half interest in the land. The petition is very lengthy, containing some allegations which affect all the defendants, some which affect only a portion of them, some which affect one portion, and some another; and all the matters and things alleged in the petition are set forth in one count. Matthew K. Sample filed a motion to require the plaintiff to amend her petition–First, by striking out certain matter designated in the motion as redundant and irrelevant; second, by separately stating and numbering the several causes of action supposed to be alleged in the petition. This motion was overruled by the court. Matthew K. Sample then filed a demurrer to the petition, setting forth all the statutory grounds for demurrer, which demurrer was first sustained by the court, and then the plaintiff amended her petition, and the demurrer was then refiled, resubmitted, and overruled by the court; and of this ruling Matthew K. Sample complains, and now brings the case to this court for review.
It will be perceived that the only questions arising in this case are between Elizabeth Sample and Matthew K. Sample; hence we shall not attempt to discuss any of the questions which may possibly arise in the case as between the plaintiff and the other defendants, or between Matthew K. Sample and his co-defendants; for what such questions may be we cannot now tell.
Matthew K. Sample complains that the petition contains irrele. vant and redundant matter. We think it does, or, at least, we think it does as between Matthew K. Sample and Elizabeth Sample; but none of his substantial rights have been materially prejudiced thereby. Besides, we can consider the question of irrelevancy and redundancy
only so far as the same may have entered into or may have affected the ruling of the court below upon the demurrer. A petition in error will not lie from the ruling of the court below upon the motion to strike out, etc., but only from its ruling upon the demurrer. But even if the motion to strike out had been sustained, and if all the irrelevant and redundant matter had been stricken out of the petition, still we do not think that the striking out of the same would have made the petition any better or any worse as between the plaintiff and Matthew K. Sample. Hence we shall consider all matters that are merely irrelevant or redundant as wholly immaterial in the case as it is now presented to this court.
Matthew K. Sample complains of allegations in the petition with reference to an antenuptial contract between Elizabeth Sample and Matthew Sample, and moneys and property delivered by Elizabeth Sample to Matthew Sample in pursuance of such antenuptial contract, and of subsequent transactions concerning such moneys and property; but these allegations, so far as they affect the plaintiff's cause of action, we think are wholly irrelevant, immaterial, and redundant, for the following reasons: Matthew Sample and Elizabeth Sample were husband and wife; Matthew K. Sample was their son. Matthew Sample died, leaving Elizabeth Sample, his widow, Matthew K. Sample, their son, and other children and grandchildren as his heirs; and whether there was any antenuptial contract or not, whether Elizabeth Sample furnished any money or property to Matthew Sample or not, and whatever may have been done with reference to such money or property, still Elizabeth Sample is entitled, under the statutes of descents and distributions, to one-half of all her deceased husband's real estate not necessary to pay debts, and this is all which she now seeks to obtain. All that she claims is one-half of all the real estate which she alleges her husband owned when he died, and which is not necessary to pay debts; and she asks that this half shall be set apart to her by this present action for partition. This is really the only object of her action, though many other matters and things are alleged as incidental thereto.
Matthew K. Sample also complains of allegations in the petition concerning a will executed by Matthew Sample prior to his death. Now, as Elizabeth Sample claims nothing under the will, but claims only under the statutes of Kansas, it makes no difference, between her and Matthew K. Sample, as to what the will contains, or whether it is valid or invalid. Even if, by the will, Matthew Sample devised all his real estate to Matthew K. Sample, yet it would make no difference with respect to Elizabeth Sample's rights, for she claims under the statutes of descents and distributions, and not under the will, and under the statutes of descents and distributions she is entitled to one-half of Matthew Sample's estate not necessary to pay debts, regardless of what the will contains. A husband cannot devise or bequeath more than one-half of his property from his wife. She may, if she chooses, take one-half of all his estate, regardless of any will which he may have.
Matthew K. Sample also complains of certain allegations in the petition tending to show a homestead interest of Elizabeth Sample in a part of the real estate in controversy; but these allegations are also wholly immaterial, because Mrs. Sample, as before stated, claims only. one-half of the real estate; and this she is entitled to receive, whether any part of the property was ever the homestead of herself or her husband, or was never the homestead of either.
Matthew K. Sample also complains of certain allegations with respect to his appointment as executor or administrator of the estate of Matthew Sample, deceased. These allegations, we think, may be considered either as redundant and immaterial, or as showing, along with other allegations, that the entire estate may, notwithstanding the administration, be properly partitioned. For, in connection with these allegations, it is further alleged that the personal property is amply sufficient to pay all the debts of the estate and all the costs of administration, and hence that it is not necessary to sell any of the real estate. If, however, the real estate should be partitioned, and afterwards it be found that the personal assets were not sufficient to pay all claims against the estate, then the real estate, or a portion thereof, could be sold to satisfy such claims.
Matthew K. Sample also complains of certain allegations in the petition with regard to deeds for a portion of the land purporting to have been executed by Matthew Sample in his life-time to Matthew K. Sample. Elizabeth Sample alleges that in fact these deeds were never delivered, but were procured by Matthew K. Sample by fraud, and without consideration. Matthew K. Sample claims that the allegations concerning these deeds constitute a separate and distinct cause of action from the cause of action for partition. Now, such allegations might in some cases constitute a separate and distinct cause of action, but in this present action they are not inserted in the petition for that purpose. They are inserted in the petition merely for the purpose of showing where the title to the property in controversy exists; they are inserted in the petition only for the purpose of showing that in fact and in equity the property belongs to the estate of Matthew Sample, deceased, and is really not the property of Matthew K. Sample, as it would seem to be, and that it, as well as the other property, may rightfully be partitioned between Elizabeth Sample and the other heirs. While these allegations may seemingly relate to a separate cause of action, yet, in fact, as will be seen from the prayer of the petition, they are intended to relate only to the action for partition, and are simply parts of the statement of the cause of action for partition. If the land belonged in law or equity to Matthew Sample at the time of his death, as is alleged, then Elizabeth Sample has a right to one-half of it, and the right to have it partitioned; and these allegations show that it did in fact belong to Mat