Page images

the pleadings, unless it be said that the al having regard to the place and surroundings." legation of the answer that if any injury oc Holland House Co. v. Baird, 169 N. Y. 136, curred to Studyvin's building it resulted from 62 N. E. 149. See, also, Booth v. Rome, W. the faulty and unworkmanlike manner in & O. T. R. Co., 140 N. Y. 267, 35 N. E. 592, which it was constructed, and the denial 24 L. R. A. 105, 37 Am. St. Rep. 552. This thereof constitutes an issue. The ownership rule we accept as a correct statement of the of the building by Studyvin and the making law. It is, of course, a general proposition of the sewer by the city are admitted. A that, wherever an individual, a corporation, number of trial errors are assigned, but are or a municipality has the right to do and grouped by counsel for the city as follows: does a work of this character, and injury re“Studyvin cannot recover in this case, ex sults therefrom to the property of another, cept as to the two glass broken by projects without trespass thereon, it is incumbent uped stones, because the work then being done on the party injured, before he can recover was a work of public necessity, and was be for the injury, to allege and prove that such ing done in the usual, customary way employ- | injury resulted from negligence in the doing ed for doing such work under like circum of the work; in other words, that with proper stances, and the damage was caused by the

care and with regard to the place and surjarring of the ground, which is a necessary roundings the work could have been accomconsequence of the use of such means and

plished without injury, but, in fact, the work methods in such work, and the damage re

was done without such care and by reason sulted from inherent defects in the building thereof the injury resulted. itself, there being a failure to prove negli

In this case the negligence of the city and gence on the part of the city.” The conten- | its employés, after being warned of the greention of the city that the injury to the build

ness of the building and after being requesting occurred by the fault of Studyvin, and

ed to put in lighter charges, was fully pleadnot through the negligence of the city, is bas

ed and was sustained by competent evidence, ed upon the following statement in the peti- although some of the evidence was conflicting. tion, viz.: “That at the time of the damage. The man in charge of the blasting testified, herein the walls of said building were not

in part, that, when blasting in the alley by well settled, that they were green, and the

the side of the building in question, he genmortar used in laying the brick had not be

erally exploded, at one time, what he called come well seasoned.” This allegation was

a round consisting of 5 holes, 16 inches to made in the petition in connection with a

2 feet deep, in each of which was a stick and statement that the employés of the city had

a quarter of dynamite, a stick being 8 inches notice of the condition of the building, and

long. He also testified, in substance, that were therefore under obligations to exercise

the rock at that place could have been blastcare commensurate with the evident danger.

ed out by the use of one stick of dynamite If the condition of the building was as al

at one blast, "for a little ways." We underleged, and the employés had notice thereof,

stand his answer to indicate that by the use these facts were pertinent in determining the

of one stick at a time the work would be degree of care required to be observed in

slower. He also said that one stick would the blasting. It is a novel proposition, cer

not cause as great concussion as two, and tainly, that the fact of owning a new build

probably this is common knowledge, as well ing is, per se, contributory negligence.

as that six sticks would cause a much greater The proposition that the work being done

concussion, which the jury had a right to take was of public necessity and was being done

into consideration. In connection with the in the usual, customary way of doing such

proven effects of the explosions on the buildwork, and that the damages, other than the

ing, this evidence was sufficient of itself to breaking of the window panes, resulted from

justify the jury in finding him guilty of negthe jarring of the ground and the concussion

ligence. of the air, and that the individual suffering

We have considered all the trial errors urgdamage thereby cannot recover from the gov- ed, and find nothing therein to justify a reernment or municipality therefor, is not with

versal. The verdict is sustained by the eviout the support of some authority. See Ben

dence, was approved by the court, and the ner v. Atlantic Dredging Co., 134 N. Y. 156,

judgment rendered thereon is affirmed. All 31 N. E. 328, 17 L. R. A. 220, 30 Am. St. Rep.

the Justices concurring. 649; Cogswell v. Railroad Co., 103 N. Y. 10, 8 N. E. 537, 57 Am. Rep. 701. However, later New York cases, while perhaps attaching

(76 Kan. 304) greater importance to the fact that work of

CARTER v. HYATT. this character is prosecuted by the public

(Supreme Court of Kansas. July 5, 1907.) and is of public utility than we might be inclined to give it, lay down the rule that


FIRMATION. negligence will not be presumed from the jar

Whether or not an order of sale issued by ring of the earth or the concussion of the the clerk of a district court to the sheriff, diair, but the burden is upon the claimant, to recting him to sell the land, in a foreclosure ac"make it appear that the explosion was unnec

tion, in accordance with a former decree of the

court, is authenticated by the seal of the court. essarily violent and carelessly prepared for, is a fact necessarily involved in the subsequent

adjudication of the confirmation or refusal to SMITH, J. (after stating the facts). The confirm the sale.

only question necessary to be considered in 2. SAME-PRESUMPTIOXS. In such case, if the court having jurisdic

the case is whether the omission of the clerk tion of the subject-matter and the parties, con

to affix his seal to the order of sale renders firms the sale, it will be presumed it found that all the subsequent proceedings void, and subthe order of sale was so authenticated; and, if jects them to collateral attack, or whether such finding be erroneous, the adjudication is not by reason thereof void, but is only voidable.

the subsequent proceedings were only voidand is vulnerable to attack only in a direct, and

able, and were so far, at least, validated by not in a collateral, proceeding.

the order of the court confirming the sale [Ed. Yote.-For cases in point, see Cent. Dig. as to render them invulnerable to a collatervol. 3.), Mortgages, § 1531.]

al attack. We hold the latter view. That (Syllabus by the Court.)

the sale was at least voidable at the time, Error from District Court, Pratt County ;

and before the confirmation thereof, must P. B. Gillett, Judge.

be fully admitted. The court which made the

order of foreclosure and sale, in the absence Action by John D. Carter against Emma Ilyatt. Judgment sustaining demurrer to

of any allegation in the petition to the conthe petition, and plaintiff brings error. Af.

trary, must be assumed to have personal firmed.

jurisdiction of Carter, as well as juriselic

tion of the subject-matter. In other words, Carter brought this suit in the district

Carter was in court, or, which is the same in court of Pratt county to recover a certain

effect, had the opportunity to be in court, tract of land, admitting that he should first

not only when the order of sale was made, pay the amount which should be found to be

but when the motion to confirm the sale was due from him after an accounting for which presented. Upon the hearing of the applicahe prayed. In his petition be alleged, in

tion to confirm the sale, the question before substance, that in August, 1886, he mortgag. the court was: Are the proceedings regular ed the same to secure the payment of a note

and in conformity with law and equity ? and interest coupons; that he defaulted in Gen. St. 1901, § 4932. payment; that an action was brought against The order confirming the sale and directing him by the holder of the mortgage for

the sheriff to make a deed is an adjudication the foreclosure thereof; that judgment was

of all the facts involved in the inquiry, one therein rendered against him for the debt, of which was the issuance of a legal order and a decree was made for the foreclosure

of sale. In case of a decision adverse to of the mortgage and for the sale of the

his interest, all legal methods of correcting land; that an order of sale, unauthenticated

the error were open to him. Should he, then, . by the seal of the court, was issued in due

be allowed to ignore the proceedings of the time, and the sheriff sold the land in ac

court, and years afterwards, in a collateral cordance with the mandate thereof, and

attack, to assert that a fact upon which the made a proper return to the court of his

order of confirmation was based is false? proceedings thereunder; that thereafter such

If the order of confirmation was an adjusale was confirmed by the court, and the

dication that all the proceedings, including sheriff was ordered to make a deed of the

the issuance of the order of sale, were regular land to the purchaser, which was done; that

and in conformity with law, he cannot in the order of sale, and all the proceedings this action be heard to dispute it. In the of the sheriff thereunder, and all the sub

opinion in an analogous case (Cross v. Knox, sequent proceedings of the court in the mat

32 Kan. 731, 735, 5 Pac. 38) it is said: “The ter, were void by reason of the omission of

act of the clerk in issuing the order, and the clerk to authenticate the order of sale

the acts of the sheriff under it, were minisby attaching thereto his official seal; and

terial, and might have been reached by mothat the defendant was in possession of the

tion to vacate or set aside; but the order land under a conveyance from the purchaser

of the court confirming the sale was a juat the sheriff's sale. A copy of the order

dicial act, and is such a final order as can of sale was attached, which shows the de

only be reached, and, if erroneous, corrected, cree of foreclosure was rendered in Octo

by proceedings in error.

We inber, 1889, and the order of sale, without

cline to the opinion (but do not decide the the seal, was issued in April, 1890. The re

question) that a confirmation of the proturn thereon indicates that the sale was

ceedings of a sheriff under an order of sale conducted according to law. No allegation

is a judicial determination that establishes of fraud in the sale, nor of anything what

the legality of the order of sale, as well as ever which would affect the rights of the

the legality of the sale made under it." That plaintiff, is made. The only infirmity in the

the order of sale is a process of the court, and proceeding complained of is the absence of

should have been authenticated by the se: the clerk's seal from the order of sale.

thereof, is unquestionable; but in this case, general demurrer was filed to this petition,

while called the order of sale, it was not and was sustained by the court. To reverse

the real order of sale. It in effect only this ruling, Carter brings the case here.

communicated to the sheriff the order thereGeo. E. McMahon, for plaintiff in error. tofore made by the court, which order of the R. F. (rick, F. G. Turner, and Wm. Barrett. court was the primary authority of the sherfor defendant in error.

itr to sell the land.

This was not an execution sale, in the Bailey, 11 Kan. 359; Knaggs V. Mastin, 9 proper sense of the term, but was a judi Kan. 532; Winstead v. Standeford, 21 Kan. cial sale. The distinction is illuminated at 270. length in Norton 1. Reardon, 67 Kan. 302, Where a court has jurisdiction over the 72 Pac. 861, 100 Am. St. Rep. 459. An ex subject-matter of an action and over the (erpt from a quotation therein made, with parties in the case, no error in its exercise approval, from Freeman on Void Judicial can render the judgment void. Burke v. Sales, § 1, epitomizes the distinction: "The Wheat, 22 Kan. 7:22; Jeixell v. Kirkpatchief differences between execution and judi- rick, 28 Kan. 315; Sweett v. Ward, 43 Kan. (ial sales are these: The former are based 695, 23 Pac. 941; Bank v. Bank, 51 Kan. on a general judgment for so much money ; | 50, 32 Pac. 627. In such case, even if a the latter, or an order to sell specific prop court decides a fact upon which its jurisdicerty. The former are conducted by an offi tion depends contrary to the real truth, its (er of the law in pursuance of the directions judgment based on such jurisdiction is not of a statute; the latter are made by the void, but is only erroneous. In re Wallace agent of a court in pursuance of the direc (Kan.) 89 Pac. 687 (April, 1907); Ayers V. tions of the court. In the former the sheriff Deering Co. (Kan.) 90 Pac. 794 (June, 1907). is the vendor; in the latter, the court. In l'nder these authorities the allegation of the the former tlie sale is usually complete when petition that the court confirmed the sale in the property is struck off to the highest bid

question really admits that the court found der; in the latter it must be reported to that the order of sale was authenticated by and approved by the court.” At common the seal of the clerk, as this is a fact neceslaw, if, in in execution sale, the sheriff, sarily embraced in the general finding. reor officer authorized to make the sale, con quired by section 4952, supra, that "the proformed to the established regulations, the

ceedings [are] regular and in conformity sale was final and valid as soon as made, with law and equity," without which finding and confirmation was only required in chan

the court had no authority to confirm the (ery cases, which are, of course, judicial

sale. True, the petition says this is not the sales. Rorei on Judicial Sales (20 Ed.) $8 | real fact. Assuming, as we must, the truth 9, 10; also, note 4, p. 0. Under our own of all the allegations of the petition, it folstatutes, however, all sales of real estate,

lows that the adjudication confirming the either on execution or on order of sale,

sale was erroneous; but it was not void. must be confirmed by the court before a deed

even though the order of sale was void. is issued. Section 4952, supra.

Bearing in mind the distinction in Norton If the writ in question had been one to

v. Reardon, supra, between ministerial and bring the parties defendant into court, or

judicial sales, in the former of which the one upon which the jurisdiction of the court

sale is consummated by the sheriff by auin any way depended. the omission of the

thority of the law, and in the latter the sale seal would have been fatal, and the jurisdic

is by the court through the agency of the tion of the court would not have attached.

sheriff, it would not be without the support If the sale had been attacked on the motion

of authority, probably the greater weight of to confirm, as in Gordon v. Bodwell, 59 Kan.

authority, to say that, even though the court 51, 51 Pac. 906, 68 Am. St. Rep. 311, it

examined the order of sale, as perhaps it should, according to the decision in that case,

should be presumed to have done, and hence although there is much authority to the

knew that it was unauthenticated by the contrary, have been set aside. That was a direct attack. In this case the attack is

seal, the court, by confirming the sale, cured

the defect. The most that is claimed in the collateral, and herein lies the distinction.

petition is that the sheriff, in making the Expressions are used in the opinion in Stouffer v. Harlan, 68 Kan. 137, 74 Pac. 610, 04

sale, acted without legal authority. It is L. R. A. 320, 104 Am. St. Rep. 396, in which

not claimed that the court was without ju(ase the order of sale was not authenticated

risdiction or authority. Now, if the sale was by the seal of the court, to the effect that really made by the court through its agent, the order of sale, and all the proceedings

the sheriff, and upon the application to conunder it, were thereby rendered null and

firm the sale the court found there was no void. The case, however, did not depend up

fraud or collusion in the sale itself, and that on this question, but upon the rights of the all the proceedings were regular and in conmortgagee in possession. The remarks were, formity with law and equity, except that therefore, ob.ter dictum.

technically the sheriff had no authority to The law fi vors the stability of judgments, proceed to execute the mandate, (oulil not and to maintain the judgment of a court the court, and did it not by confirming the having jurisdiction of the subject-matter in

sale, ratify the unauthorized act of its agent volved and of the parties to an action, it is and thus give it validity? 'The authorities to be presumed, from a general finding or on this question, pro and con, are collated judgment in favor of one party, that every in a note covering several pages at the foot fact involved in the action and which is of Watson v. Tromble (Xeb.) 29 Am. St. necessary to support the judgment is found Rep. 493. See, also, 17 Am. & Eng. Enroye. in favor of the prevailing party. Bixby v. of Law, 993; Robertson v. Smith, 94 Va.

250, 26 S. E. 579, 64 Am. St. Rep. 723, and to answer on July 3, 1901. On that day they note 726; also 24 Cyc. 36.

made default. They did, however, go to the The weight of authority seems to be that, city court and remain there a considerable in the absence of fraud or circumstances portion of the day, when they ascertained that might affect substantial rights, the court the judge was absent, and went bome. They may cure by confirmation any infirmity in gave no further attention to the case, and the proceedings which it could correct by im upon January 10, 1902, without further nomediately ordering a new sale. This seems tice to them, judgment was rendered in favor to accord with reason. The plaintiff had of the plaintiff by default. The judge of the here opportunity to know, at the time of the city court was not present in court at any confirmation, the fact upon which he claims time on July 3, 1901, and the clerk made no to have the whole proceedings adjudged void. adjournment of the cause. In an action in Ile may not then have desired to take ad the district court between the same parties, vantage of it. The lapse of about 15 years based upon the city court judgment, the may have augmented the value of the prop plaintiff recovered, and the defendants assign erty, and have effected a change in his mind. error. If this be the situation, he is entitled to The principal question relates to the aulittle equitable consideration; but he should thority of the city court to proceed, under prevail, if at all, because the law entitles the circumstances, after July 3, 1901. Chaphim to what he asks. It seems well estab ter 126, p. 211, Sess. Laws 1899, creates the lished that whether a sale be confirmed or court of Coffeyville, defines its jurisdiction, set aside is largely a matter of judicial dis and regulates its procedure. In civil actions cretion; that the determination thereof is a the Code of Civil Procedure and the practice judicial decision, final unless corrected by in district courts govern, except in certain appeal, or unless wholly void; that the fact specified matters not material here. Followupon which the alleged infirmity is based ing that procedure and practice the city court was determined by the court in confirming acquires jurisdiction of a defendant by the the sale, and, even if the fact were errone service of summons. The answer day stated ously determined, the final order of confirma in the summons is the day for the defendant tion is not therefore void.

to file a written pleading or become in deIt follows that the demurrer to the peti fault. He is not required or expected to be tion was properly sustained, and the judg personally present in court on that day, and, ment is a ftirmed. All the Justices concur if he does go to the place for holding the ring.

court and wait out the day, he accomplishes nothing in fortification of his rights. Such

conduct is not recognized as a legal step in a (76 Kan. 299)

civil proceeding. The court is not expecteil SCHOCKMAN et al. v. WILLIAMS.

or obliged to do anything in the case on an(Supreme Court of Kansas. July 5, 1907.) swer day. The defendant has all of it in 1. COURTS-MUNICIPAL COURTS-PROCEDURE. which to plead. If he fails to plead, there is The statute creating the court of Coffey

nothing before the court to continue, and ville does not contemplate action by the court in a civil case on the day fixed by the summons

nothing upon which it could act before the for answer. The judge need not be present in next day. In the district court, when once a court on that day, and no adjournment need be defendant is in default the cause may be distaken on that day to preserve jurisdiction,

posed of, irrespective of the time for the be2., SAME-PLEADINGS. Personal appearance by the defendant at

ginning of terms and without notice to the the place of holding court on answer day is not

defendant at any time it may be reached in a legal step in a civil action in the Court of Cof the orderly course of the court's business or feyville. To protect his rights he should file

may be brought to the attention of the court some written pleading recognized by the Code of Civil Procedure.

by the plaintiff. The absence from the stat3. SAME-DEFAULT JUDGMENT.

ute of a provision for terms of the court of The court of Coffeyville may render judg Coffeyville is therefore of no importance in ment by default whenever it desires to do so this controversy. In theory the court is in after the time allotted to the defendant in which

continuous session. Only those hearings, the to plead has expired. (Syllabus by the Court.)

time of which has been in some manner law

fully fixed, need be continued by the clerk in Error from District Court. Montgomery the absence of the judge, to preserve jurisCounty; Thos. J. Flannelly, Judge.

diction over the parties; and defaults may be Action by Kate Williams against Bertha disposed of at pleasure. Schockman and Wilhelm Schockman. Judg The defendants admitted the commencement for plaintiff, and defendants bring er ment of the action in the court of Coffeyville ror. Affirmed.

against them, the service of summons upon Ayers & Welch, for plaintiffs in error. them, and the pendency of proceedings there. B. Clark, for defendant in error.

All that remained for the plaintiff to prove

was the rendition of judgment, and this was BURCH, J. The defendants were sued by properly done by a transcript of the judgthe plaintiff in the court of Coffey ville and ment alone. A transcript of the entire record served with a summons which required them would have been superfluous. No objection

to the authentication of the transcript was made in the district court, and none will be considered now.

The defendants complain because the court withdrew the cause from the jury, but they point out nothing but an issue of law which was finally in controversy in the district court, and which is in controversy now.

Other errors assigned are without merit, and the judgment of the district court is affirmed. All the Justices concurring.


ELLIS COUNTY. (Supreme Court of Kansas. July 5, 1907.) 1. COUNTIES_ACTIONS BY TAXPAYERS.

Taxpayers who bring an action under chapter 334, p. 550, of the Laws of 1.905, to enjoin a board of county commissioners from carrying out a contract for the building of a bridge and appropriating money to pay for the same, do not sue in behalf of the public, or in any representative capacity, but only for the protection of their own interests. 2. EQUITY—INEQUITABLE CONDUCT — ACTION BY TAXPAYERS.

The rule that equity will not aid those who have been guilty of inequitable conduct in the matter presented as a basis for equitable relief applies to such taxpayers the same as to ordinary suitors. 3. COUNTIES-ACTIONS BY TAXPAYERS-ESTOPPEL.

It would be inequitable to allow such taxpayers, who had a knowledge of the letting of the contract, and who stood silently by for months unti the greater part of the work was done and the contractor had incurred great expense, to enjoin the board of county commissioners from paying for the bridge, when complete, because of irregularities in the letting of the contract and a defective exercise of authority, conferred by law upon such board.

(Syllabus by the Court.)

sponse to this notice the Topeka Bridge & Iron Manufacturing Company and others made bids for the construction of the bridge. It proposed to build a cement, concrete bridge, reinforced with iron and steel, at a specified price. The proposal was accepted by the board, and on December 19, 1905, it entered into a contract with the bridge company by which the latter was to construct the bridge for $1,995. The bridge company began at once to make the iron and steel portions of the bridge and had completed and shipped the same to Ellis county in June, 1906. About the same time it shipped the cement and other necessary materials and began the construction of the abutments and piers of the bridge. On February 5, 1906, an order was made providing for a notice, and public notice was given of the purpose of the board to appropriate $1,995 for the building of the bridge in question. On June 23, 1906, when the manufacture and construction of the bridge was well advanced, Theodore Meistrell and seven other taxpayers of the county instituted this action, alleging noncompliance with the statute in the preliminary steps taken by the board towards the building of the bridge and in the awarding of the contract for that purpose, and obtained a restraining order. On July 18, 1906, upon a trial had the temporary injunction asked for was denied. While the court held that the board had not appointed a commissioner to determine the cost of the bridge in advance, and also that no plans or specifications for the bridge were on file in the office of the county clerk 30 days prior to the awarding of the contract, as the statute required, and while the bridge contracted for was not strictly of . the kind described in the notice inviting bids, the laches of the plaintiffs in sitting still for so long a time and allowing large expenditures of money to be made in carrying out the contract disentitled them to the equitable relief which they asked.

The ruling of the court will not be disturbed. The ground of the relief asked by plaintiff is based, not so much upon a want of power to build a bridge as upon informality and irregularity in the exercise of the power. The bridge was necessary, and there was the acknowledged power in the board to build it. The board did not appoint a commissioner to estimate the cost and contract for the building of the bridge; but it will be observed that such an appointment is not required, except when the board is not satisfied as to the expense of building the proposed bridge. Gen. St. 1905, § 565. The board had inspected other bridges and had learned about the cost of such structures, but had no definite information as to what the contemplated bridge would cost, and hence the commissioner might well have been appointed. They had, however, estimated the expense, in a way, to be about $2,500, and that estimate appears to have been about as close to the contract price as were the

Error from District Court, Ellis County; J. H. Reeder, Judge.

Suit by Theodore Meistrell against the board of county commissioners of Ellis county. Judgment for defendants, and plaintiff brings error. Affirmed.

A. D. Gilkeson and W. E. Saum, for plaintiff in error. D. R. Hite, Mulvane & Gault, and J. P. Shutts, for defendants in error.

JOHNSTON, C. J. This was an action to enjoin the commissioners of Ellis county from carrying out a contract for the building of a bridge or the appropriation of public money to pay for the bridge.

On November 4, 1905, the commissioners determined to build a bridge over the Saline river and advertised for bids for its construction, Kecifying that it should be "a stone or cerpent bridge with a span of fortyeight feet, to be fourteen feet above low-water level, with a sixteen-foot roadway. iron guard rails, with one seventy-foot wing and one fifty-foot wing. Said bridge to be built across the Saline river about fourteen miles north of the city of Hays, Kansas."

In re91 P.-5

« PreviousContinue »