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the pleadings, unless it be said that the allegation of the answer that if any injury occurred to Studyvin's building it resulted from the faulty and unworkmanlike manner in which it was constructed, and the denial thereof constitutes an issue. The ownership of the building by Studyvin and the making of the sewer by the city are admitted. number of trial errors are assigned, but are grouped by counsel for the city as follows: "Studyvin cannot recover in this case, except as to the two glass broken by projected stones, because the work then being done was a work of public necessity, and was being done in the usual, customary way employed for doing such work under like circumstances, and the damage was caused by the jarring of the ground, which is a necessary consequence of the use of such means and methods in such work, and the damage resulted from inherent defects in the building itself, there being a failure to prove negligence on the part of the city." The contention of the city that the injury to the building occurred by the fault of Studyvin, and not through the negligence of the city, is based upon the following statement in the petition, viz.: "That at the time of the damage herein the walls of said building were not well settled, that they were green, and the mortar used in laying the brick had not become well seasoned." This allegation was made in the petition in connection with a statement that the employés of the city had notice of the condition of the building, and were therefore under obligations to exercise care commensurate with the evident danger. If the condition of the building was as alleged, and the employés had notice thereof, these facts were pertinent in determining the degree of care required to be observed in the blasting. It is a novel proposition, certainly, that the fact of owning a new building is, per se, contributory negligence.

The proposition that the work being done was of public necessity and was being done in the usual, customary way of doing such work, and that the damages, other than the breaking of the window panes, resulted from the jarring of the ground and the concussion of the air, and that the individual suffering damage thereby cannot recover from the government or municipality therefor, is not without the support of some authority. See Benner v. Atlantic Dredging Co., 134 N. Y. 156, 31 N. E. 328, 17 L. R. A. 220, 30 Am. St. Rep. 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 greater importance to the fact that work of this character is prosecuted by the public and is of public utility than we might be inclined to give it, lay down the rule that negligence will not be presumed from the jarring of the earth or the concussion of the air, but the burden is upon the claimant, to "make it appear that the explosion was unnecessarily violent and carelessly prepared for,

having regard to the place and surroundings." Holland House Co. v. Baird, 169 N. Y. 136, 62 N. E. 149. See, also, Booth v. Rome, W. & O. T. R. Co., 140 N. Y. 267, 35 N. E. 592, 24 L. R. A. 105, 37 Am. St. Rep. 552. This rule we accept as a correct statement of the law. It is, of course, a general proposition that, wherever an individual, a corporation, or a municipality has the right to do and does a work of this character, and injury results therefrom to the property of another, without trespass thereon, it is incumbent upon the party injured, before he can recover for the injury, to allege and prove that such injury resulted from negligence in the doing of the work; in other words, that with proper care and with regard to the place and surroundings the work could have been accomplished without injury, but, in fact, the work was done without such care and by reason thereof the injury resulted.

In this case the negligence of the city and its employés, after being warned of the greenness of the building and after being requested to put in lighter charges, was fully pleaded and was sustained by competent evidence, although some of the evidence was conflicting. The man in charge of the blasting testified, in part, that, when blasting in the alley by the side of the building in question, he generally exploded, at one time, what he called a round consisting of 5 holes, 16 inches to 2 feet deep, in each of which was a stick and a quarter of dynamite, a stick being 8 inches long. He also testified, in substance, that the rock at that place could have been blasted out by the use of one stick of dynamite at one blast, "for a little ways." We understand his answer to indicate that by the use of one stick at a time the work would be slower. He also said that one stick would not cause as great concussion as two, and probably this is common knowledge, as well as that six sticks would cause a much greater concussion, which the jury had a right to take into consideration. In connection with the proven effects of the explosions on the building, this evidence was sufficient of itself to justify the jury in finding him guilty of negligence.

We have considered all the trial errors urged, and find nothing therein to justify a reversal. The verdict is sustained by the evidence, was approved by the court, and the judgment rendered thereon is affirmed. All the Justices concurring.

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adjudication of the confirmation or refusal to confirm the sale.

2. SAME-PRESUMPTIONS.

In such case, if the court having jurisdiction of the subject-matter and the parties, confirms the sale, it will be presumed it found that the order of sale was so authenticated; and, if such finding be erroneous, the adjudication is not by reason thereof void, but is only voidable, and is vulnerable to attack only in a direct, and not in a collateral, proceeding.

[Ed. Note. For cases in point, see Cent. Dig. vol. 35, Mortgages, § 1534.]

(Syllabus by the Court.)

Error from District Court, Pratt County; P. B. Gillett, Judge.

Action by John D. Carter against Emma Hyatt. Judgment sustaining demurrer to the petition, and plaintiff brings error. Affirmed.

Carter brought this suit in the district court of Pratt county to recover a certain tract of land, admitting that he should first pay the amount which should be found to be due from him after an accounting for which he prayed. In his petition he alleged, in substance, that in August, 1886, he mortgaged the same to secure the payment of a note and interest coupons; that he defaulted in payment; that an action was brought against him by the holder of the mortgage for the foreclosure thereof; that judgment was therein rendered against him for the debt, and a decree was made for the foreclosure of the mortgage and for the sale of the land; that an order of sale, unauthenticated by the seal of the court, was issued in due time, and the sheriff sold the land in accordance with the mandate thereof, and made a proper return to the court of his proceedings thereunder; that thereafter such sale was confirmed by the court, and the sheriff was ordered to make a deed of the land to the purchaser, which was done; that the order of sale, and all the proceedings of the sheriff thereunder, and all the subsequent proceedings of the court in the matter, were void by reason of the omission of the clerk to authenticate the order of sale by attaching thereto his official seal; and that the defendant was in possession of the land under a conveyance from the purchaser at the sheriff's sale. A copy of the order of sale was attached, which shows the decree of foreclosure was rendered in October, 1889, and the order of sale, without the seal, was issued in April, 1890. The return thereon indicates that the sale was conducted according to law. No allegation of fraud in the sale, nor of anything whatever which would affect the rights of the plaintiff, is made. The only infirmity in the proceeding complained of is the absence of the clerk's seal from the order of sale. general demurrer was filed to this petition, and was sustained by the court. To reverse this ruling, Carter brings the case here.

A

Geo. E. McMahon, for plaintiff in error. R. F. Crick, F. G. Turner, and Wm. Barrett, for defendant in error.

SMITH, J. (after stating the facts). The only question necessary to be considered in the case is whether the omission of the clerk to affix his seal to the order of sale renders all the subsequent proceedings void, and subjects them to collateral attack, or whether the subsequent proceedings were only voidable, and were so far, at least, validated by the order of the court confirming the sale as to render them invulnerable to a collateral attack. We hold the latter view. That the sale was at least voidable at the time, and before the confirmation thereof, must be fully admitted. The court which made the order of foreclosure and sale, in the absence of any allegation in the petition to the contrary, must be assumed to have personal jurisdiction of Carter, as well as jurisdiction of the subject-matter. In other words, Carter was in court, or, which is the same in effect, had the opportunity to be in court, not only when the order of sale was made, but when the motion to confirm the sale was presented. Upon the hearing of the application to confirm the sale, the question before the court was: Are the proceedings regular and in conformity with law and equity? Gen. St. 1901, § 4952.

The order confirming the sale and directing the sheriff to make a deed is an adjudication of all the facts involved in the inquiry, one of which was the issuance of a legal order of sale. In case of a decision adverse to his interest, all legal methods of correcting the error were open to him. Should he, then, be allowed to ignore the proceedings of the court, and years afterwards, in a collateral attack, to assert that a fact upon which the order of confirmation was based is false? If the order of confirmation was an adjudication that all the proceedings, including the issuance of the order of sale, were regular and in conformity with law, he cannot in this action be heard to dispute it. In the opinion in an analogous case (Cross v. Knox, 32 Kan. 734, 735, 5 Pac. 38) it is said: "The act of the clerk in issuing the order, and the acts of the sheriff under it, were ministerial, and might have been reached by motion to vacate or set aside; but the order of the court confirming the sale was a judicial act, and is such a final order as can only be reached, and, if erroneous, corrected, by proceedings in error. We incline to the opinion (but do not decide the question) that a confirmation of the proceedings of a sheriff under an order of sale is a judicial determination that establishes the legality of the order of sale, as well as the legality of the sale made under it." That the order of sale is a process of the court, and should have been authenticated by the seal thereof, is unquestionable; but in this case, while called the order of sale, it was not the real order of sale. It in effect only communicated to the sheriff the order theretofore made by the court, which order of the court was the primary authority of the sheriff to sell the land.

This was not an execution sale, in the proper sense of the term, but was a judicial sale. The distinction is illuminated at length in Norton v. Reardon, 67 Kan. 302, 72 Pac. 861, 100 Am. St. Rep. 459. An excerpt from a quotation therein made, with approval, from Freeman on Void Judicial Sales. § 1, epitomizes the distinction: "The chief differences between execution and judicial sales are these: The former are based on a general judgment for so much money; the latter, or an order to sell specific property. The former are conducted by an oflicer of the law in pursuance of the directions of a statute; the latter are made by the agent of a court in pursuance of the directions of the court. In the former the sheriff is the vendor; in the latter, the court. the former the sale is usually complete when the property is struck off to the highest bid der; in the latter it must be reported to and approved by the court." At common law, if, in an execution sale, the sheriff, or officer authorized to make the sale, conformed to the established regulations, the sale was final and valid as soon as made, and confirmation was only required in chancery cases, which are, of course, judicial sales. Rore on Judicial Sales (2d Ed.) $$ | 9. 16; also, note 4. p. 6. Under our own statutes, however, all sales of real estate, either on execution or on order of sale, must be confirmed by the court before a deed is issued. Section 4952, supra.

In

If the writ in question had been one to bring the parties defendant into court, or one upon which the jurisdiction of the court in any way depended. the omission of the seal would have been fatal, and the jurisdiction of the court would not have attached. If the sale had been attacked on the motion to confirm, as in Gordon v. Bodwell, 59 Kan. 51. 51 Pac. 906, 68 Am. St. Rep. 341, it should, according to the decision in that case, although there is much authority to the contrary, have been set aside. That was a direct attack. In this case the attack is collateral, and herein lies the distinction.

Expressions are used in the opinion in Stouffer v. Harlan, 68 Kan. 137, 74 Pac. 610, 64 L. R. A. 320, 104 Am. St. Rep. 396, in which case the order of sale was not authenticated by the seal of the court, to the effect that the order of sale, and all the proceedings under it, were thereby rendered null and void. The case, however, did not depend upon this question, but upon the rights of the mortgagee in possession. The remarks were, therefore, ob ter dictum.

The law favors the stability of judgments, and to maintain the judgment of a court having jurisdiction of the subject-matter involved and of the parties to an action, it is to be presumed, from a general finding or judgment in favor of one party, that every fact involved in the action and which is necessary to support the judgment is found in favor of the prevailing party. Bixby v.

Bailey, 11 Kan. 359; Knaggs v. Mastin, 9 Kan. 532; Winstead v. Standeford, 21 Kan. 270.

Where a court has jurisdiction over the subject-matter of an action and over the parties in the case, no error in its exercise can render the judgment void. Burke v. Wheat, 22 Kan. 722; Meixell v. Kirkpatrick, 28 Kan. 315; Sweett v. Ward, 43 Kan. 695, 23 Pac. 941; Bank v. Bank. 51 Kan. 50, 32 Pac. 627. In such case, even if a court decides a fact upon which its jurisdiction depends contrary to the real truth, its judgment based on such jurisdiction is not void, but is only erroneous. In re Wallace (Kan.) 89 Pac. 687 (April, 1907); Ayers v. Deering Co. (Kan.) 90 Pac. 794 (June, 1907). Under these authorities the allegation of the petition that the court confirmed the sale in question really admits that the court found that the order of sale was authenticated by the seal of the clerk, as this is a fact necessarily embraced in the general finding, required by section 4952, supra, that "the proceedings [are] regular and in conformity with law and equity," without which finding the court had no authority to confirm the sale. True, the petition says this is not the real fact. Assuming, as we must, the truth of all the allegations of the petition, it follows that the adjudication confirming the sale was erroneous; but it was not void. even though the order of sale was void.

Bearing in mind the distinction in Norton v. Reardon, supra, between ministerial and judicial sales, in the former of which the sale is consummated by the sheriff by authority of the law, and in the latter the sale is by the court through the agency of the sheriff, it would not be without the support of authority, probably the greater weight of authority, to say that, even though the court examined the order of sale, as perhaps it should be presumed to have done, and hence knew that it was unauthenticated by the seal, the court, by confirming the sale, cured the defect. The most that is claimed in the

petition is that the sheriff, in making the sale, acted without legal authority. It is not claimed that the court was without jurisdiction or authority. Now, if the sale was really made by the court through its agent, the sheriff, and upon the application to confirm the sale the court found there was no fraud or collusion in the sale itself, and that all the proceedings were regular and in conformity with law and equity, except that technically the sheriff had no authority to proceed to execute the mandate, could not the court, and did it not by confirming the sale, ratify the unauthorized act of its agent and thus give it validity? The authorities on this question, pro and con, are collated in a note covering several pages at the foot of Watson v. Tromble (Neb.) 29 Am. St. Rep. 495. See, also, 17 Am. & Eng. Encyc. 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.

The weight of authority seems to be that, in the absence of fraud or circumstances that might affect substantial rights, the court may cure by confirmation any infirmity in the proceedings which it could correct by immediately ordering a new sale. This seems to accord with reason. The plaintiff had here opportunity to know, at the time of the confirmation, the fact upon which he claims to have the whole proceedings adjudged void. Ile may not then have desired to take advantage of it. The lapse of about 15 years may have augmented the value of the property, and have effected a change in his mind. If this be the situation, he is entitled to little equitable consideration; but he should prevail, if at all, because the law entitles him to what he asks. It seems well established that whether a sale be confirmed or set aside is largely a matter of judicial discretion; that the determination thereof is a judicial decision, final unless corrected by appeal, or unless wholly void; that the fact upon which the alleged infirmity is based was determined by the court in confirming the sale, and, even if the fact were erroneously determined, the final order of confirmation is not therefore void.

It follows that the demurrer to the petition was properly sustained, and the judgment is affirmed. All the Justices concurring.

(76 Kan. 299)

SCHOCKMAN et al. v. WILLIAMS. (Supreme Court of Kansas. July 5, 1907.) 1. COURTS-MUNICIPAL COURTS-PROCEDURE. The statute creating the court of Coffeyville does not contemplate action by the court in a civil case on the day fixed by the summons for answer. The judge need not be present in court on that day, and no adjournment need be taken on that day to preserve jurisdiction. 2., SAME-PLEADINGS.

Personal appearance by the defendant at the place of holding court on answer day is not a legal step in a civil action in the Court of Coffeyville. To protect his rights he should file some written pleading recognized by the Code of Civil Procedure.

3. SAME-DEFAULT JUDGMENT.

The court of Coffeyville may render judgment by default whenever it desires to do so after the time allotted to the defendant in which to plead has expired.

(Syllabus by the Court.)

Error from District Court. Montgomery County; Thos. J. Flannelly, Judge.

Action by Kate Williams against Bertha Schockman and Wilhelm Schockman. Judgment for plaintiff, and defendants bring error. Affirmed.

Ayers & Welch, for plaintiffs in error. A. B. Clark, for defendant in error.

BURCH, J. The defendants were sued by the plaintiff in the court of Coffeyville and served with a summons which required them

made default. They did, however, go to the city court and remain there a considerable portion of the day, when they ascertained the judge was absent, and went home. They gave no further attention to the case, and upon January 10, 1902, without further notice to them, judgment was rendered in favor of the plaintiff by default. The judge of the city court was not present in court at any time on July 3, 1901, and the clerk made no adjournment of the cause. In an action in the district court between the same parties, based upon the city court judgment, the plaintiff recovered, and the defendants assign

error.

The principal question relates to the authority of the city court to proceed, under the circumstances, after July 3, 1901. Chapter 126, p. 241, Sess. Laws 1899, creates the court of Coffeyville, defines its jurisdiction, and regulates its procedure. In civil actions the Code of Civil Procedure and the practice in district courts govern, except in certain specified matters not material here. Following that procedure and practice the city court acquires jurisdiction of a defendant by the service of summons. The answer day stated in the summons is the day for the defendant to file a written pleading or become in default. He is not required or expected to be personally present in court on that day, and, if he does go to the place for holding the 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 civil proceeding. The court is not expected or obliged to do anything in the case on answer day. The defendant has all of it in which to plead. If he fails to plead, there is nothing before the court to continue, and nothing upon which it could act before the next day. In the district court, when once a defendant is in default the cause may be disposed of. irrespective of the time for the beginning of terms and without notice to the defendant at any time it may be reached in the orderly course of the court's business or may be brought to the attention of the court by the plaintiff. The absence from the statute of a provision for terms of the court of Coffeyville is therefore of no importance in this controversy. In theory the court is in continuous session. Only those hearings, the time of which has been in some manner lawfully fixed, need be continued by the clerk in the absence of the judge, to preserve jurisdiction over the parties; and defaults may be disposed of at pleasure.

The defendants admitted the commencement of the action in the court of Coffeyville against them, the service of summons upon them, and the pendency of proceedings there. All that remained for the plaintiff to prove was the rendition of judgment, and this was properly done by a transcript of the judgment alone. A transcript of the entire record 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.

(76 Kan. 319)

MEISTRELL v. BOARD OF COM'RS OF 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 1905, 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-ESTOP

PEL.

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.)

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 oridge 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, specifying that it should be "a stone or cement 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

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. posed 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

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