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(74 Kan. 117)

The evidence of the marshal is that the peROBERTSON V. ROOK ISLAND LUMBER titioner drew his knife and the marshal left & MFG. CO.

suddenly and went home for the purpose of (Supreme Court of Kansas. Nov. 10, 1906.) procuring a revolver. Soon after, he returned On rehearing. Affirmed.

up town in search of the petitioner. He depuFor former opinion, see 85 Pac. 799.

tized one of the bystanders to go with him

for the purpose of assisting in arresting Milton Brown, T. A. Noftzger, and C. C.

Stilts. He went to another house some Brown, for plaintiff in error. Fred Washbon

blocks away and procured a revolver for himand Dale & Amidon, for defendant in error.

self, giving his own to the deputy. In

quiries were made for Stilts and they were PER CURIAM. In this case upon a first

told that he had gone toward the blacksmith hearing the judgment of the trial court was shop. They went and hunted for him. After affirmed. Thereafter a rehearing was asked

a little while they learned that he had started upon the ground, among others, that due no

home, and they went to his home for the tice had not been given to the attorneys of

purpose of arresting him for the disturbance. the plaintiff in error of the setting of the

It was about 11 o'clock in the evening and case. It was found that there had been a

the petitioner was in his house. The marpartial omission in this respect, and largely

shal had no warrant. The testimony at the upon that account the petition for a rehearing | preliminary examination, so far as it conwas granted.

cerns the assault and the circumstances leadAfter giving full consideration to the ar

ing up to it, consists mainly of the evidence guments presented at the second hearing, given by the marshal. He testified that he the court is still of the opinion that the case sent the deputy to the back door and went was rightly decided, and the judgment is

himself to the front door and called to the therefore affirmed.

petitioner; that the latter said: "What do you want?" and called him a vile name. "I

said, 'Now, Jim, there is no use to act this (74 Kan. 805)

way; I am going to arrest you,' and he said, In re STILTS.

'Don't come in. Finally I pulled the screen (Supreme Court of Kansas. Dec. 8, 1906.)

door back and stepped up on the floor and HABEAS CORPUS-ASSAULT-EVIDENCE.

started in, and just then he threw and hit Evidence taken on a preliminary examination of petitioner on the charge of assault

me, and just then I shot.” His testimony is ing an officer who attempted to arrest him with that the petitioner threw a beer bottle at him, out a warrant examined, and held sufficient to striking him in the pit of the stomach; that justify holding the petitioner to the district

he then fired four shots from a revolver, one court.

of the shots taking effect in the arm of Stilts, (Syllabus by the Court.)

who then came out and gave himself up. The Application of James Stilts for a writ of marshal took him to a physician, and, it aphabeas corpus. Writ denied.

pearing that his wound was serious, he was R. W. Turner and E. P. Hotchkiss, for pe

allowed to return home, and no further attitioner. D. J. Coy and G. H. Bailey, for re

tempt was made to prosecute him for the disspondent.

turbance on the street, but four days after

wards the marshal filed the complaint upon PORTER, J. The petitioner was charged

which the warrant for his arrest issued on with a felonious assault in striking one Jacob

the charge of assaulting the marshal and Burger in the pit of the stomach with a striking him with the beer bottle. deadly weapon commonly known as a "beer It is argued by the petitioner that the evibottle,” with intent to maim, wound, and

dence conclusively shows that no offense was kill. On his preliminary examination, he committed; that the attempted arrest was was held under bond to answer to the dis

without authority of law for the reason that trict court.

the peace had been restored; that the disIt is claimed that the evidence of the pre

orderly conduct of the petitioner had ceased, liminary examination shows that no offense and he had gone to his own home and had the was committed. The facts leading up to the right, under the circumstances, to resist an charge upon which the petitioner was held arrest without a warrant. The state conare as follows: During the evening of Au tends, on the other hand, that the evidence gust 4, 1906, the petitioner had an altercation shows a disturbance of the peace and a folwith Jacob Burger in front of the hotel in the lowing up by the officer for the purpose of town of Randall. Burger was the city mar an arrest so closely in point of time that it shal. The petitioner was drunk and disor was all one transaction. “The arrest must be derly. He used abusive and threatening lan made at the time of the offense or immediate guage toward the marshal who made no at ly after its commission, or upon fresh purtempt to arrest him at that time. He then suit, while the offender is fleeing from the challenged the marshal to go down to the scene of the crime.” 2 A. & E. Enc. of Law, railroad tracks, a distance of about 200 feet 876. The law is well settled, however, that from the hotel. The challenge was accepted. where an officer attempts to make an arrest When they got to the railroad they stopped. for a misdemeanor committed in his view,

after peace has been restored, the arrest is to recover a personal judgment against him unlawful unless made with a warrant. upon the note and to foreclose the mort“When a policeman, after having seen a gage. He caused a summons to issue to breach of the peace or a misdemeanor com John Oscar Wiren directed to the sheriff of mitted, departs, and afterwards returns, he Shawnee county, Kan., to be served, at the cannot arrest without warrant for such previ same time informing such sheriff that John ous offense so committed in his view. The Oscar Wiren was an inmate of the insane shortness of the interval does not affect the asylum located in Shawnee county. This question.” Meyer v. Clark, 41 N. Y. Super. summons was returned showing service by Ct. 107. See, also, 1 Chit. Cr. Law, 23; 2 Esp. delivering a copy to John Oscar Wiren perRep. 540; 1 East, P. C. 305; Reg. v. Johnsonally on October 5, 1900. Subsequently Marsden, 11 Cox, C. C. 90; Regina v. Walker, the plaintiff made application to the district 25 Eng. Law & Eq. 589. The evidence at court for the appointment of a guardian

preliminary is not necessarily conclu ad litem for John Oscar Wiren, upon the sive upon any point, and is generally suffi- ground that he had been adjudged insane cient to authorize a holding over if a proba- and was then an inmate of the insane asybility appears that an offense has been com- | lum at Topeka. Upon this application the mitted.

court appointed D. C. Bye guardian ad Whether the petitioner is or is not guilty | litem for John Oscar Wiren, who, after takcan best be determined from a full hearing of ing the guardian's oath, filed a general deall the evidence, and we do not feel warrant nial, and the cause was tried without other ed under the circumstances in discharging service. I personal judgment was rendered him.

against Wiren and a decree foreclosing the The writ will be denied. All the Justices mortgage was made. Under this judgment concurring.

and decree, an order of sale was issued and the land sold to the plaintiff. The sale was

confirmed, and a deed executed to him. On (74 Kan. 775)

March 6, 1905, the probate court of Rawlins MARQUIS v. WIREN et al.

county appointed 0. A. Olson guardian of the (Supreme Court of Kansas. Dec. 8, 1906.) person and estate of John Oscar Wiren, and INSANE PERSONS JUDGMENT AGAINST on the same date the guardian filed his apVACATING.

plication in the district court of Rawlins A judgment rendered against an insane person upon personal service made after he

county asking that the judgment theretofore had been adjudged insane, and before a guardian rendered in the case of Marquis v. Wiren be has been appointed, is void, and should be set set aside for the reason that the court had aside upon application made in the original action by the guardian of his person and es

no jurisdiction of the defendant, Wiren, and tate.

the entire proceedings were void. The ap[Ed. Note.-For cases in point, see Cent. Dig. | plication was granted and the judgment was vol. 27, Insane Persons, $ 182.]

set aside. From this order, the plaintiff (Syllabus by the Court.)

prosecutes error.

The only question to be determined is: Error from District Court, Rawlins Coun

Was the judgment rendered void for want ty; A. C. T. Geiger, Judge.

of jurisdiction of the defendant, Wiren? Application of C. A. Olson, guardian of

There is but one way for a court to obtain John Oscar Wiren, to set aside a judgment

jurisdiction of an insane person and that is against Wiren in favor of R. W. Marquis.

by having the process served on his guardJudgment for plaintiff, and defendant brings

ian. Section 3941 of the General Statutes error. Affirmed.

of 1901 authorizes any person to institute Albert Hemming and Valentine, Godard & proceedings in lunacy against one suspected Valentine, for plaintiff in error. Fred Rob- of being insane, or incapable of managing ertson and J. S. West, for defendant in error. his own affairs, and section 3945 requires the

probate court, when it has been determined GREENE, J. This is a proceeding to reverse that such person is insane or incapable of an order of the district court of Rawlins managing his own affairs, to appoint a county setting aside a judgment formerly guardian of his person and property. Secrendered in that court against John Oscar tion 3958 provides that in all actions against Wiren, in favor of R. W. Marquis. It ap an insane person the process must be served pears that on August 30, 1889, John Oscar upon his guardian, and also makes it the Wiren, a single man, gave his note in the duty of the guardian to prosecute and de

sum of $200 to the Des Moines Loan & fend all actions instituted in behalf of or

Trust Company, and also gave a mortgage upon certain real estate in Rawlins county to secure its payment. The plaintiff in error subsequently became the owner of the note and mortgage, and certain payments thereon being in default he commenced his action on February 28, 1900, in the district court of Rawlins county against John Oscar Wiren

against such ward. These sections were in force at the time the original proceedings were had, but were repealed by chapter 299, p. 450, Laws of 1905, but no change was made which in any way affects the proceedings had upon which the original judgment was rendered. None of these provisions were observed in the attempt to bring Wiren

promissory note for $495, executed by her statute in earlier cases.

into court. The court, therefore, did not Pac. 473, 33 Am. St. Rep. 370, and it was obtain jurisdiction of him, and the judg held that the title to a note and the mortment was void.

gage securing its payment passed by delivery, The order setting aside the judgment upon and that the possession of the instruments the application of the guardian of Wiren is and their production at the trial by the plainaffirmed. All the Justices concurring.

tiff furnished prima facie evidence of his ownership. The payees of the note are not contesting Brennan's title to

the paper. (74 Kan. 707)

Whatever the rule might be if the title and ANTHONY V. BRENNAN.

ownership were challenged by the payees, it (Supreme Court of Kansas. Dec. 8, 1906.) is clear that delivery and possession were MORTGAGES—TRANSFER-VALIDITY.

sufficient for Brennan's purpose. Plaintiff The act relating to the recording of assign in error appears to concede this to have been ments of mortgages (Laws 1899, p. 340, c. 168), the correct rule, but he claims that it has does not restrict the methods by which a negotiable note and mortgage securing it may be

been changed by the act relating to the astransferred, nor prevent a transfer of the own signment of real estate mortgages. Laws ership of such paper by mere delivery.

1899, p. 340, c. 168. That act does not under(Syllabus by the Court.)

take to limit the methods by which real Error froni District Court, Clay County ;

estate mortgages may be transferred, and it Sam Kimble, Judge.

does not provide that the failure to make Action by J. F. Brennan against C. M.

a record of an assignment of a mortgage Anthony. Judgment for plaintiff, and de

shall invalidate the security or the transfer. fendant brings error. Affirmed.

It was intended as a protection to mort

gagors, and the only penalty prescribed for W. P. Anthony, for plaintiff in error. J.

not recording the transfer is that all payP. Otis and Geo. L. Davis, for defendant in

ments made by the mortgagor to the morterror.

gagee or to any one who appeared to be

the owner shall be credited to the mortgagor, JOHNSTON, C. J. This was an action

although the assignee never received such brought by J. F. Brennan to recover on a

payments. This was the view taken of the

statute in earlier cases. Myers v. Wheelock, M. Anthony to Laura Fish and five other

60 Kan. 747, 57 Pac. 956, and Wheelock v. payees, and to foreclose a mortgage which he

Myers, 64 Kan. 47, 67 Pac. 632. The ownergave to secure the payment of the note.

De

ship of the paper was sufficiently shown in fault was made in the payment of the note and J. F. Brennan, who became the owner the pleadings, and also in the proof that was

offered to sustain it. and holder of the note and mortgage short

The judgment will be affirmed. All the ly after they were executed, brought this

Justices concurring. action. It appears that at the commencement of the action he had obtained a written assignment of the mortgage from only

(74 Kan. 697) one of the mortgagees. For this his origi

ROBBINS v. FRAZIER. nal petition was attacked by demurrer and (Supreme Court of Kansas. Dec. 8, 1906.) held to be insufficient, and he filed an amend

1. TAXATION_TAX DEED-FORM. ed petition setting forth assignments 'which The provision of the statute that a tax he subsequently obtained from the remain

deed shall be substantially in a prescribed ing mortgagees, executed after the action

form, which provides for a recital of the date

of sale, implies a requirement that, in order was begun. The sufficiency of the amended

to be good on its face, it shall show on what petition was challenged by a demurrer, which day the sale was made, and such requirement is the court overruled. A trial resulted in a not met by a showing that it was made on judgment upon the note, and a decree fore

one or the other of two designated days, with

out indicating which. closing the mortgage.

2. SAME-RECITALS IN DEED. It is now insisted that the amended peti

A recital in a tax deed covering several tion did not show a right of recovery in disconnected tracts that they were sold on the Brennan, and that the court erred in over

2d and 4th days of September will be interpretruling the demurrer. The argument is that

ed as meaning that some of them were sold on

the 2d and some on the 4th, and where there as Brennan had not procured all of the assign is nothing in the deed to indicate upon which ments of the mortgage when the original of the two days a particular tract was sold,

the deed will be held invalid as a conveyance of petition was filed, he did not then have an

that tract even when attacked after having been existing cause of action against Anthony, of record for five years. and that the defect was not cured by ob

(Syllabus by the Court.) taining and pleading them in the amended petition. These assignments were not essen

Error from District Court, Kiowa County; tial to a statement of his cause of action.

E. H. Madison, Judge. The note in suit was negotiable in form

Action by W. W. Robbins against R. A. and it and the mortgage were transferable

Frazier. Judgment for defendant, and plainwithout a written indorsement, and by mere

tiff brings error. Reversed. delivery. A like question was raised in John W. Davis, for plaintiff in error. L. O'Keeffe y. National Bank, 49 Kan. 347, 30 M. Day, for defendant in error.

should "show the time of sale." These expressions, however, are employed arguendo. and the context suggests that they have especial reference to the necessity that the deed shall indicate that the sale was made at the time fixed by law—that is, under the present statute, during the period beginning with the first Monday of September-a requirement which, in this instance, is met by other recitals than that quoted. Nevertheless, the fact remains that the exact date of the sale of a particular tract marks an important point in the proceedings leading up to a tax deed; it is the time from which interest on the amount of delinquent tax is computed, and from which the right to redeem runs. In view of this consideration the implied requisition that the deed shall recite it must be deemed as mandatory as though expressly stated, and, by the principle followed in Gibson v. Kueffer, (9 Kan. 534., 77 Pac. 282, the failure to comply with such a requirement is fatal to the deed even upon an attack made after it has been of record for more than five years.

The judgment is reversed, and the cause remanded for further proceedings in accordance herewith. All the Justices concurring.

MASON, J. This case presents the question whether the trial court ruled correctly in holding a tax deed to be good against an attack made after it had been of record for five years. The only objection to the deed necessary to be considered is that it fails to show with certainty the day of the sale on which it is based. It covers five disconnected tracts. Its recitals are, in substance, that the county treasurer "on the 20 and 4th days of September, A. D. 1890," offered each of said tracts for sale as it was reached in its turn and sold it. It is, of course, impossible that a single tract should have been sold on different days, and this language can only be interpreted to mean that a part of the lots were sold on the 2d and the rest on the 4th. The tract here involved is the third on the list in the order in which they are numbered in the deed. There is nothing in any part of the instrument from which any inference can be drawn as to whether this particular tract was sold on the first day named or on the second. There is, therefore, a failure to show upon what day the sale was in fact made. If this omission is ordinarily fatal to a tax deed the one here involved cannot be saved by the consideration that it discloses that the sale took place upon one or the other of two days and that the interval between them is slight. A requirement that the date of a transaction shall be designated is not met by merely restricting the possible dates to two. Whether the interval between them is small or great cannot affect the matter. Is such omission fatal? The statute does not in terms require a tax deed to show the day of the sale. It does, however, provide that the deed must be substantially in a prescribed form, of which the following is a part (Gen. St. 1901, $ 7676): "And whereas, the treasurer of said county did, on the — day of A. D.

*

at [an adjourned sale of] the sale begun and publicly held on the first Tuesday of May, A. D.

expose at public sale

the real property above described

and whereas, at the place aforesaid, A. B. * * * having offered to pay the sum of

dollars and cents

the said property was stricken off to him at that price." This amounts to a requirement that the date of sale shall be stated unless it can be said that such date is not a material or substantial matter. It is true that the deed shows affirmatively that the land was offered in the course of the regular September sale, and sold more than three years before the deed was executed. It is, therefore, difficult to see how the failure to recite the exact date could have misled or in any way prejudiced the owner or any one interested in the land. In Haynes v. Heller, 12 Kan. 381, it is said in the syllabus that a tax deed "must show upon its face the time at which the property was sold, or it will be void," and in the opinion that "the time at which the sale is made is, of course, material," and that the deeds

87 P.-72

(74 Kan. 704) GIRDOM et al. v. DUREIN. (Supreme Court of Kansas. Dec. 8, 1906.) 1. APPEAL CASE-MADE EXTENSION OF TIME.

Under the provisions of section 5482, Gen. St. 1905, time to make and serve a case-made may be extended beyond ten days after entry of judgment, by an order to that effect in the journal entry of judgment, and, when so done. no other or further action is necessary prior to the expiration of the time so given. 2. JUDGMENT -RES JUDICATA.

Where, in an action of partition, a decree has been entered which fully determines the respective interests of the parties in the lands sought to be divided, and in pursuance of proper proceedings thereunder the court orders a sale of the property, such decree and proceedings are binding upon the parties, and neither can thereafter abandon the same and maintain another action in partition to accomplish the same purpose.

(Syllabus by the Court.)

Error from District Court, Shawnee County; A. W. Dana, Judge.

Action by Frank Durein against Anna Gerdom and others. Judgment for plaintiff, and defendants bring error. Reversed.

Quinton & Quinton, for plaintiffs in error. Hazen & Gaw and C. A. Magaw, for defendant in error.

*

GRAVES, J. The first question presented in this case is a motion to dismiss the petition in error, for the reason that the casemade was not settled and signed within the time prescribed by Acts 1905, p. 535, c. 320, § 3, being section 5482, Gen. St. 1905, which reads: “The case-made or a copy thereof shall, within ten days after the judg

ment or orders entered, be served upon all partition of the land in controversy in the opposite or adverse parties by delivery there district court of Shawnee county against the of to such parties or their attorney or by de- plaintiffs in error. In that action a decree livery thereof to the clerk of the court in of partition was entered as prayed for. Comwhich such judgment or order is made or missioners were appointed to make division entered;

provided further, that of the property, who reported that such divithe party applying for said order of exten sion could not be made without manifest sion shall immediately upon securing and fil injury to the rights of the parties, and ing an order of extension give notice in writ thereupon returned an appraisement of the ing to the opposite or adverse parties of land. The court thereupon, on May 18, 1892, such extension by serving a copy of such ordered the land to be sold according to law, notice personally on such opposite or adverse and the proceeds paid into court to await parties or their attorneys or any of their its further order. There the proceedings attorneys of record, or by mailing a copy of rested. No further steps were taken to ensuch notice enclosed in an envelope directed force the decree. On the 6th day of March, to the last known address of such opposite 1903, the plaintiff, instead of proceeding unor adverse parties or their attorneys of rec der the decree already obtained, began this ord; postage prepaid, and such parties shall action of partition. His petition was filed thereupon take notice of such extension. in the same court, was between the same Proof of the service of the notices herein parties, was concerning the same land, and required may be made before the court or contained substantially the same allegations judge, signing the case-made as herein pro as the petition in the former case. The vided, by affidavit that such notice has been plea of former adjudication was overruled, served or mailed, as herein provided for." another trial had, and a decree entered subThe close of the journal entry of judgment stantially the same as before. We think the in this case reads: "Thereupon the defend decree and proceedings in the first action ants filed their motion for a new trial, which are binding upon both parties, and that neithmotion was presented to the court and after

er can thereafter maintain a new action, due consideration by the court was overruled,

identically the same in all respects, for the and the defendants excepted to the ruling

purpose of accomplishing the same purpose. thereof. Thereupon said defendants

Persons may not be annoyed and harassed by allowed ninety days in which to make and repeated lawsuits, for the purpose of deserve their case-made for the supreme court

termining questions which have already been herein." The case-made was settled and judicially determined in court. signed August 28, 1905. No other applica The distinction drawn by counsel between tion was made for an extension of time be

pleas in bar and for the abatement of the yond the 10 days after the judgment was

suit does not seem to be important in this entered, and no notice was served upon the

case. The object of the answer of the plainadverse parties, or their attorneys, that such

tiff in error was merely to defeat the new application would be made. The only com

action of partition, and was not intended to pliance with these requirements of the stat

affect the first suit, and we do not think it ute is found in the journal entry of judg

should have any effect beyond the abatement ment. We think this sufficient. The order

of the action in which it was filed. of the court, made as a part of the journal

The judgment of the district court is reentry or judgment when all parties were in

versed, with instructions to carry out the court and had notice thereof, is a substantial

view here expressed. All the Justices concompliance with the terms of the statute,

curring. and nothing further is necessary to be done until the expiration of the time so given.

(74 Kan. 771) It is useless to notify a party of that which

CRAPSTER V. TAYLOR. he already knows. The object of this statute was to prevent parties from prolonging (Supreme Court of Kansas. Dec. 8, 1906.) the preparation of a case-made, by exten 1. INFANTS INTEREST IN LAND JUDICIAL sions obtained from time to time without SALE.

An infant two months old cannot be divestthe knowledge of the adverse party. The

ed of real estate, in which he owns the feepractice followed in this case fully accom simple title, by a judicial proceeding to which plishes this purpose. Therefore the motion he was not a party, of which he had no notice, is overruled.

and in which he was not represented by guard

ian or otherwise. This requires a consideration of the case

[Ed. Note. For cases in point, see Cent. Dig. on its merits. This is an action in partition. vol. 27, Infants, $ 85.] The defendant in the district court inter

2. SAME--RECOVERY OF LAND-ACTION BY INposed the plea of former adjudication, which FANT. was overruled, and that ruling is claimed by

La sold under such a proceeding may the plaintiff in error to be erroneous. The

be recovered in an action brought for that pur

pose, if the suit is commenced within two years question will be understood by a considera after the infant owner reaches the age of tion of the following facts: In 1892, the majority. defendant in error commenced an action for (Syllabus by the Court.)

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