Page images
PDF
EPUB

termining his credibility. (Hughes' Instructions to Juries, §§ 226, 227.) The credibility of a witness is, of course, a question for the jury, and the court should never use language discrediting a witness, nor indicate an opinion as to the weight which should be given to his testimony. Here the court appears to have placed no estimate on the evidence of the defendant, but allowed the jury to determine his credibility saying that in doing so they were at liberty to consider the interest he had in the result of the trial. Attention is called to remarks made by the county attorney in his argument to the jury, but those mentioned in the brief are not of a serious nature and besides they were not brought to the attention of the court when made, and exceptions to them are not preserved in the record.

Judgment affirmed. All the Justices con curring.

(74 Kan. 442)

KELSO v. NORTON et al. MCMURRAY v. SAME. (Supreme Court of Kansas. Oct. 6. 1906.) 1. PROCESS SUMMONS-NECESSITY OF SEAL. A summons issued by the clerk of a district court without being authenticated by the seal of the court is void, and service thereof will not confer jurisdiction upon the court.

[Ed. Note.-For cases in point, see vol. 40, Cent. Dig. Process, § 35.]

2. JUDGMENT-COLLATERAL ATTACK.

Any judgment rendered or other action taken by a court without jurisdiction is a nullity, and open to attack collaterally as well as directly.

[Ed. Note.-For cases in point, see vol. 30, Cent. Dig. Judgment, § 924.]

3. MORTGAGES-VOID FORECLOSURE-SUIT TO

REDEEM.

In an equitable action to redeem real estate from a sale under void foreclosure proceedings, where redemption is permitted, the equities of the parties will be adjusted in accordance with their rights as mortgagor and mortgagee, the same as if the foreclosure suit had not been commenced. 4. SAME PAID.

ACCOUNTING INTEREST ON TAXES

In an accounting between mortgagor and mortgagee in an equitable action to redeem real estate from void foreclosure proceedings, the mortgagee is entitled to recover interest on taxes paid by him after taking possession under such proceedings at the rate of 12 per centum per annum from date of payment, as provided by section 148 of the tax laws, being section 8423, Gen. St. 1905.

[Ed. Note.-For cases in point, sce vol. 35, Cent. Dig. Mortgages, § 1786.]

5. SAME-PARTIES.

The object of an equitable action to redeem real estate from void foreclosure proceedings is to adjust equities between the mortgagor and mortgagee, and the mere holder of a judgment lien upon the land sought to be redeemed is not a necessary party to the complete determination of the controversy involved in the suit.

Error from District Court, Osage County; Robt. C. Heizer, Judge.

Action by Harry P. Norton and Minnie A. Kopke against M. B. Kelso. Judgment for plaintiffs, and defendant brings error. Alfred W. McMurray asked leave to interplead in such action, and from an order denying the same he brings error. Judgment for plaintiffs modified and affirmed, and order refusing leave to interplead affirmed.

July 16, 1887, H. E. Norton, who resided in Lyon county, owned land in Chase county. At that date he was indebted to M. B. Kelso in the sum of $2,100, to secure which he and his wife, Helen R. Norton, executed a mortgage on said Chase county land. No payments having been made on the debt, Kelso commenced a suit in the Chase county district court, September 13, 1889, to foreclose his mortgage. A summons was issued in said suit, which was served personally upon Norton and his wife in Lyon county. Judgment and decree of foreclosure was taken against the defendants upon default. The land was sold under the decree and purchased by Kelso, who obtained a sheriff's deed and entered into the possession of the land, and thereafter claimed to be the owner thereof by virtue of such conveyance. Afterwards both Norton and his wife died, leaving the defendants in error, at that time. minors, their sole surviving children and heirs at law. When the children reached the age of majority, they brought an action of ejectment against Kelso to recover possession of the land, claiming that the summons, issued in the foreclosure suit and served upon their parents, did not have the seal of the court affixed thereto, and therefore the foreclosure proceedings, including the sheriff's deed, were void. They obtained judgment against Kelso for possession of the land, which judgment was reversed by this court in the case of Kelso v. Norton, 65 Kan. 778, 70 Pac. 896, 93 Am. St. Rep. 308. In that case this court held that the remedy of the Norton heirs was in an equitable action for redemption, and not in ejectment.

Afterwards, in November, 1903, the defendants in error commenced this action in the district court of Chase county, which was transferred to Osage county for trial. The district court of Osage county entered a decree permitting the Nortons to redeem upon payment of a sum stated. The plaintiff in error now asks that this decree be reversed. Upon the trial the district court filed findings of fact and conclusions of law, in which it found that no seal was affixed to the summons served upon the Nortons in the foreclosure suit and that they were not otherwise served with process. It appears that a summons was found among the papers in the case, which had been regularly

[Ed. Note. For cases in point, see vol. 35, served upon the defendants by the sheriff of Cent. Dig. Mortgages, §§ 1825, 1826.]

(Syllabus by the Court.)

Lyon county and duly returned. It does not appear that any other or further sum

mons was issued. This summons was presented to the trial court for inspection, together with an impression of the seal of the court made on another paper in the same case at or near the date of the issuance of the summons. There is nothing before this court but a transcript of the record and proceedings had before the trial court. The The journal entry of foreclosure contains the following recital: "The defendants failing and neglecting to appear either in person or by attorney, although personally served with summons, and defaulted in and to the petition of the plaintiff." The order of confirmation of sale had in said suit contains the following recital: "And the court having carefully examined the proceedings, including the order of sale and the return thereon, is satisfied that the said sale was made in all respects in conformity with law," etc. For several years after Kelso took possession of the land under his sheriff's deed he paid the taxes thereon, and the court in the accounting taken to ascertain the amount due to Kelso only allowed 6 per cent. interest on the taxes so paid, while he claims to be entitled to 12 per cent. under section 8423, Gen. St. 1905, which reads: "In cases where lands are mortgaged, if the mortgagor fails or neglects to pay the taxes, or in case the mortgagor permits any land so mortgaged to be sold for any taxes, the mortgagee may pay said taxes, or redeem any land so sold for taxes. And on payment of any such mortgage, or in the action to enforce the same, such mortgage may demand the taxes so paid with interest thereon at the rate of twelve per cent. per annum, or include them in any judgment rendered on the mortgage; and any taxes so paid by any mortgagee shall be a lien on such land so mortgaged until the same is paid."

November 13, 1904, one Alfred W. McMurray recovered a judgment in the district court of Chase county against the defendants in error herein for the sum of $500, and on the 22d day of November, 1904, he made application to the district court of Osage county to be made a party to the case of Norton v. Kelso, and file an interplea therein that he might protect his interest as the holder of a judgment lien against the interest of the Nortons in the land in controversy in that suit. This application was denied, and McMurray has brought that ruling of the court here for review. Both cases have been submitted together, and will be so considered.

Bishop Crumrine, for plaintiff in error Kelso. W. A. Randolph, for defendants in error Norton and others.

Edwin S. Waterbury, for plaintiff in error McMurray. W. A. Randolph and Bishop Crumrine, for defendants in error Norton'

and others.

The

GRAVES, J. (after stating the facts). plaintiff in error insists that the recital in the judgment, "although personally served with summons," and the order of confirmation, together with the presumption which usually obtains in favor of the judgments of courts of general jurisdiction, constitute prima facie proof that a sealed summons was served upon the defendants in the foreclosure suit, which is not overcome by the evidence presented in this case. In view, however, of the opportunity which the trial court had to examine the original summons and compare it with an impression made by the seal of the court in use at the time the summons was issued and near the date thereof, we feel bound by the court's finding that the only writ served upon the defendants in the foreclosure suit had no seal affixed thereto. The plaintiff in error also urges that even if the summons was without seal, the absence thereof is unavailing in a collateral proceeding. This court has held that a summons having no seal is void, and service thereof will not confer jurisdiction. Dexter v. Cochran, 17 Kan. 447; Lindsay v. Commissioners Kearny Co., 56 Kan. 630, 44 Pac. 603; Gordon v. Bodwell, 59 Kan. 51, 51 Pac. 906, 68 Am. St. Rep. 341; Taylor v. Buck, 61 Kan. 694, 60 Pac. 736, 78 Am. St. Rep. 346; Stouffer v. Harlan, 68 Kan. 137, 74 Pac. 610, 64 L. R. A. 320, 104 Am. St. Rep. 396. It has also held that a judgment or other proceeding of a court not having jurisdiction is a nullity, and may be attacked at any time collaterally as well as directly. Mastin v. Gray, 19 Kan. 458, 27 Am. Rep. 149; Meixell v. Kirkpatrick, 28 Kan. 316; McNeill v. Edie, 24 Kan. 108; Amsbaugh v. Bank, 33 Kan. 105, 5 Pac. 384; Olson v. Nunnally, 47 Kan. 392, 28 Pac. 149, 27 Am. St. Rep. 296. We are unable, therefore, to say that the trial court erred in finding the foreclosure proceedings void, or in permitting the defendants in error to redeem. We think the court erred, however, in allowing only 6 per cent. interest on the taxes paid by Kelso, after the date of the sheriff's deed.

We do not concur in the contention of the defendants in error that these taxes were paid by Kelso as owner and not as mortgagee. The defendants in error invoked a remedy purely equitable. They asked the court to set aside and ignore the entire foreclosure proceedings, including the sheriff's deed as void. They asked that an accounting be taken between them and Kelso, on the basis that he was in possession under his mortgage, and not by virtue of a sheriff's deed. To grant the relief prayed for it was necessary to adjust the rights of the parties upon the assumption that no foreclosure proceedings were ever commenced, and that the relation of mortgagor and mortgagee had at all times existed between them. In this view the rights and duties of Kelso must be measured by bis to redeem the land by payment of the mortmortgage. The defendants in error offered gage debt, and they should not be permitted

to regard the foreclosure proceedings valid for one purpose and invalid for another. The statute relating to a mortgagee's right to pay taxes when the mortgagor neglects to do so was as much a part of the mortgage as if it had been written therein, and all payments of taxes made by Kelso should be regarded as payments by him as mortgagee, that being his only relation to the land. It would be inequitable to deprive him of any part of his security merely because he erroneously supposed himself to be the owner of the land. In the case of McMurray v. Norton et al., submitted with this case, we are unable to say that the district court erred in refusing to permit McMurray to be made a party to this suit. He was not a necessary party to the complete determination of the controversy involved and his rights could not be injuriously affected by the result of that suit. judgment under which McMurray claims is a mere statutory lien upon whatever interests the Norton heirs may have, if any, in the lands which they are seeking to redeem. If such an interest is uncovered and established in that suit McMurray can reach it with an execution. Otherwise, if he thinks such an interest exists he can cause it to be sold at execution sale, and whoever buys at such sale will be the owner of such interest, and possess all the rights of the original mortgagor. Such a person might be in a position to invoke relief in an equitable action to redeem, but a mere lien holder is not. The only function of an equitable action to redeem is to adjust equities between a mortgagor and mortgagee, and these are the only necessary parties to such a case.

The

The judgment of the district court permitting the defendants in error to redeem is affirmed. The court is directed to amend its judgment so as to make the aggregate amount to be paid by the defendants in error the sum of $3,954.35, with interest from July 10, 1905, at the rate of 8 per cent. per annum until paid. The costs in both courts will be divided between the parties equally. The order of the court refusing to permit A. W. McMurray to be made a party is affirmed. All the Justices concurring.

(74 Kan. 419)

STATE v. HINCHMAN. (Supreme Court of Kansas. Oct. 6, 1906.) INFORMATION-FORMAL CONCLUSION.

Under the statutes of this state prescribing what criminal pleadings shall contain, it is not necessary that an information for murder shall conclude according to the ancient common

law formula for indictments "and so the prosecuting attorney aforesaid upon his oath doth say," etc., and an omission of the italicized words from a properly verified information I will not vitiate it.

[Ed. Note. For cases in point, see vol. 27, Cent. Dig. Indictment and Information, §§ 159, 160.]

(Syllabus by the Court.)

Appeal from District Court, Doniphan County; Wm. I. Stuart, Judge.

Robert L. Hinchman was convicted of murder, and appeals. Affirmed.

Waggener, Doster & Orr and Arthur C. Bell, for appellant. C. C. Coleman, Atty. Gen., and S. M. Brewster, for the State.

BURCH, J. The record in this case recites the proceedings whereby a man convicted and sentenced to the penitentiary for 25 years for killing his wife in a conflict occasioned by the passion of each for the possession of their adopted child. Domestic infelicity caused the husband. and wife to separate. She went to live at her mother's home, and there kept and cherished the innocent cause of her death. On the morning of the fateful day the husband made an effort to obtain possession of the child, but failed, whereupon he procured from a justice of the peace a warrant for his wife's arrest. He then sought to borrow a pistol from an acquaintance, but was refused. Another person, to whom he applied, loaned him a weapon. He said that anything he did would be in self-defense. He then went to his wife's home, and was soon followed by two armed constables who sought to raise a possé of the neighbors, but failed. The three men deployed themselves about the premises but one of the constables soon went away in the belief the woman had decamped. The defendant. having been directed by the remaining constable to do so, went to the east side of the house, while the constable himself proceeded to a door on the south side of the building near its southwest corner. Finding the object of the quest to be within, the officer promised her immunity from harm if she would open the door, which she did. He commenced reading the warrant to her when the defendant left his post, came upon the porch where the constable stood, and with the blade of his knife opened the screen door separating him and the officer from his victim. The woman was armed and pistol shots were rapidly exchanged between husband and wife. She fell, mortally wounded. He strode into the house, gathered up the child. and went away. The constable took his hat in his hand, and ran. On the trial the defendant's plea was self-defense, and that theory of the case is maintained in the brief filed for the defendant in this appeal. It is not necessary to review the evidence for the purpose of elucidating its incriminating force. The testimony is conflicting upon the most important features of the encounter. The jurors have chosen whom of the witnesses they preferred to believe. There appears to have been nothing arbitrary in their choosing and this court cannot say they were wrong. The verdict of guilty is amply sustained.

Cross-examination of the state's witnesses

was not unduly restricted. It is not intimated that the sheriff was engaged in the suppression of evidence, and if he were not, his reason for omitting to bring into court the screen door, which he described fully and which was readily obtainable, was not important. The witness Heeny's knowledge of the Hinchmans and their difficulties was sufficiently probed. The attempts to infiltrate the record with insinuations against the virtue of the murdered, woman were all improper. Mrs. Stamm testified that after Mrs. Hinchman's return from Pennsylvania, Hinchman came to see her, bringing McCoy with him; that afterwards Mrs. Hinchman went to see her husband, and that she carried no pistol. Other questions propounded to this witness are not credited with any importance in the brief and none is apparent. It made no difference in the case what unexpressed ideas were in the mind of Miss Cochran while Mrs. Hinchman sat, revolver in hand, behind locked doors, and the defendant and the constables executed their maneuvers on the outside. No evidence of importance offered on behalf of the defendant was excluded. Leaman McCoy did testify once to the threats of the deceased, and that was sufficient. The defendant claims to have based his conduct upon a certain state of facts presenting itself to him at the time of the killing. This state of facts, he says, included an attempt on the part of his wife to shoot him before he fired at all. Having acted upon much later information communicated in a much more impressive manner, it was of little consequence that Mrs. Hinchman had a pistol once some months before. The record shows the defendant detailed in full the facts relating to his opportunity to retreat, and that ultimately he gave his opinion upon them. Hence, assuming his conclusion to be admissible, the refusal to allow him to express it in the first instance was not prejudicial.

The court committed no error in refusing instructions asked by the defendant. The legal principles suggested by those numbered 4 and 11 were correctly stated by the court in instructions given. As declared in his brief and in his testimony, the defendant claimed to be acting in self-defense, and not in defense of his child, and he described no state of facts presenting even the phantom of a necessity for shooting his wife to save his child. Therefore, the obtrusion of this subject into instruction No. 6 vitiated it. The only purpose of instruction No. 16 was to give legal sanction to the conduct of the defendant and the constables in their invasion of the Stamm premises. The court was probably of the opinion the proposed arrest of Mrs. Hinchman was understood to be a mere device to procure the custody of the child, and hence that the complaint and warrant conferred lawful authority;

therefore the jury was instructed that those documents could be considered only as tend

ing to show good faith on the part of those who attempted to execute the process. But the court instructed the jury that even though the defendant went without lawful authority upon the premises where Mrs. Hinchman was, still, if he believed he was legally there, his right of self-defense would not be impaired; if assaulted, he was not bound to retreat, but could stand his ground and resist with such force as reasonably appeared to be necessary; and do this even though his assailant were a woman and his wife. If the process were technically legal but the constables were not acting in good faith under it-were actually abusing it-they were trespassers. If they were acting in good faith, their attitude was made the same as if the process were legal, even though invalid. Hence the instructions given were sufficient for the constables who were not on trial. The defendant makes no claim that he did the shooting in any official capacity, or under the compulsion of any officer. If he did not go there in good faith, but went there to assist in the abuse of legal process, he was a trespasser. If he acted in good faith he was accorded the same rights as any person rightfully stationed and wrongfully assailed. The guilt or innocence of the defendant must finally depend upon what occurred in immediate connection with the firing of the fatal shot, and nothing but the clearest prejudice in giving or refusing instructions bearing upon other matters can make the judgment subject to reversal.

The instructions given were not erroneous. The criticisms upon them are chiefly verbal. The context shows the meaning of the expression "in the wrong" to be clearly equivalent to making the first assault with a pistol. The word "affray" is shown by the same context to mean the shooting at each other by Mr. and Mrs. Hinchman. The expression "force the belief upon the mind" was used to make the distinction between having some tendency to induce belief and actually generating belief. The latter part of the twenty-second instruction being merely explanatory and illustrative of accurate and positive enunciations of the law elsewhere clearly and correctly made was not misleading, and the same is true of the twenty-fourth instruction. The twenty-third instruction is not open to the objection made to it. The effect of the thirty-sixth instruction has already been discussed.

The information is attacked because it does not conclude according to the formula deemed indispensable in indictments at common law "and so the prosecuting attorney aforesaid upon his oath doth say," etc. The statutes of this state prescribe what an information shall contain and divest it of all technicalities of form. The allegations of fact made in the charging part distinguish the offense, and, when verified by the prosecuting officer, every statement in it is upon

his oath. Therefore an omission of the italicized words will not vitiate it. The majority opinion in the case of State v. Coleman. 186 Mo. 152, 84 S. W. 978, 69 L. R. A. 381, is disapproved.

The judgment of the district court is affirmed. All the Justices concurring.

(74 Kan. 871)

TRUITT et al. v. BECKTOLD. (Supreme Court of Kansas. Oct. 6, 1906.) WRIT OF ERROR-REVIEW-ORAL TESTIMONY AND DEPOSITIONS.

Questions of fact will not be determined on error uninfluenced by the conclusions of the trial court, though most of the evidence was in the form of depositions; the oral evidence having borne on a vitally important matter.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 3965.]

Error from District Court, Lyon County; Dennis Madden, Judge.

Action by W. B. Becktold. T. M. Truitt, administrator, and others intervened. Judgment for plaintiff. Intervenors bring error. Affirmed.

McLaughlin & Messerley and L. Frank Ottofy, for plaintiff in error. C. S. Briggs, J. L. Hornsby, and Denuis Madden, for defendant in error.

PER CURIAM. H. L. Ferris, being indebted to R. W. Gilliam, made him a deed to a tract of land as security. Gilliam executed a conveyance of the property to his niece, Carrie Thummel. She conveyed the land to Ferris, who paid her a part of the debt and gave her a mortgage for the remainder. This mortgage was assigned to W. B. Becktold, who brought action to foreclose it. The administrator and heirs of Gilliam, who had in the meantime died, intervened and asked that the transfer from Gilliam to Miss Thummel be set aside as having been obtained by undue influence, and that the mortgage be held to belong to the estate. Upon trial the court found in favor of the plaintiff and rendered judgment accordingly, from which the intervenors prosecute

error.

For some time before Gilliam executed the deed to his niece she had been doing most of his writing for him, and the plaintiffs in error contend that the admitted facts establish such a confidential relation between them as to raise a presumption that she exercised undue influence upon her uncle, and thereby to cast upon her the burden of proving the contrary. Whether this contention is sound need not be determined, for Miss Thummel testified at great length concerning all the details of the transaction, and her evidence, if given credence, is sufficient to rebut such presumption.

It is further contended that, inasmuch as most of the evidence was in the form of depositions, this court should determine for

Miss Thummel was not present at the

itself from the record the disputed questions of fact, uninfluenced by the conclusions reached by the trial court. We should not be justified in doing so. The oral evidence introduced was relatively small in quantity, but a part of it bore upon the vitally important matter of the mental condition of Gilliam at about the time he executed the deed. trial. Oral testimony was given in direct denial of portions of her deposition. The trial judge was aided in resolving such contradiction by the opportunity of observing one of the parties to it. The conclusions formed from such observation were an aid in interpreting and weighing the other statements made by Miss Thummel. Therefore the reviewing court lacks a part of the information that aided the district court in its decision, and cannot interfere with the result reached except upon the view that there was no evidence to support it. useful purpose would be accomplished by reviewing the evidence at length.

It is enough to say that upon an examination of the whole record no sufficient reason appears for reversing the judgment, which is accordingly affirmed.

(74 Kan. 870)

ZINDARS v. ERIE GAS & MINERAL CO. (Supreme Court of Kansas. Oct. 6, 1906.) WRIT OF ERROR-RECORD AGREED STATEMENT OF FACTS.

The agreed statement of facts, not being a part of the record, unless made so by bill of exceptions, cannot be considered on error, though a copy of it is attached to the transcript of the record.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 2416.]

Error from District Court, Neosho County. Action by L. H. Zindars against the Erie Gas & Mineral Company. Judgment for defendant. Plaintiff brings error. Affirmed.

J. L. & C. S. Denison, for plaintiff in error. W. R. Cline, for defendant in error.

PER CURIAM. This action was brought to cancel an oil and gas lease on the ground of an alleged forfeiture. The case was tried on an agreed statement of facts, and the court found and rendered judgment for the defendant. The plaintiff brings the case here for review on a transcript of the record, to which is attached a copy of an agreed statement of facts. The agreed statement was not made a part of the record by a bill of exceptions. The only contention of the plaintiff in error is that the court erred in not finding the facts for him. Defendant in error contends here that this court cannot. examine the agreed statement upon which the trial court found for defendant, because it was not made a part of the record and is therefore not before this court. An agreed statement of facts is only the evidence in

« PreviousContinue »