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(74 Kan. 615)

to and adjoining its first right of way. As HARDER v. KANSAS & C. P. RY. CO.

before, damages were separately awarded to (Supreme Court of Kansas. Nov. 10, 1906. Harder and to his wife, and, as before, each Rehearing Denied Dec. 8, 1906.

appealed. In the district court the Harders 1. APPEAL-HARMLESS ERROR-CONSOLIDATION asked that the cases be consolidated, but OF CAUSES.

the request was refused. A trial of Harder's A judgment will not be reversed on account

appeal resulted in a verdict and judgment of the refusal of the trial court to consolidate the action in which it was rendered with an adopting the award already made. Harder other merely because such a consolidation might prosecutes error. have been proper. To procure a reversal on

Under various assignments the plaintiff account of such ruling the party aggrieved must show that his rights have been substantially

in error complains of the action of the trial prejudiced thereby.

court in denying the motion to consolidate [Ed. Note.--For cases in point, see Cent. Dig. the two causes, in ruling out evidence revol. 3, Appeal and Error, 8 4047-4051, 4128.] lating to the pile bridge that had been con2. SAME.

structed and to the grade crossing that had A husband and wife severally owned tracts been taken out, and in giving instructions of land which adjoined and which were used ils one property, but not as a homestead. A

with regard to the measure of damages. In railway company condemned a right of way support of the claim of error with respect to across both tracts. Each separately appealed the motion to consolidate it is contended from the award of damages made by the com

that the railroad company was obliged to missioners on account of the land taken from the corresponding tract. A motion made by the

pay, and the husband and wife together were landowners in the district court to consolidate entitled to receive, a sum equal to whatever the cases was overruled. Held, that there is

diminution in value the appropriation of the no presumption that such ruling was prejudicial

additional strip occasioned to the entire to the substantial rights of the parties, and that in this case no such prejudice is shown.

tract, of which each owned a part, treated as [Ed. Note.-For cases in point, see Cent. Dig.

one property. It may be assumed that this vol. 3, Appeal and Error, $$ 4038–4046.]

contention is correct. It does not follow, (Syllabus by the Court.)

however, that the refusal to try the two ap

peals together was error. Consolidations Error from District Court, Woodson Coun

are ordinarily a matter of convenience, conty; Oscar Foust, Judge.

cerning which the trial court has a large Condemnation proceedings by the Kansas

discretion. A judgment should not be re& Colorado Pacific Railway Company. From

versed on account of a ruling in such connecan award of damages, C. F. Harder appeals,

tion unless some actual prejudice is shown. ind from a judgment adopting the award, he

It is not made to appear that there was any brings error. Affirmed.

difficulty in determining how much of the Kirkpatrick & Holmes, for plaintiff in error. total depreciation referred to fell upon the J. H. Richards and C. E. Benton (Lamb & part of the land owned by the husband and Hogueland, of counsel), for defendant in how much upon that owned by the wife, error.

or in determining how much of it was due

to the appropriation of the husband's land, MASON, J. For many years past C. F. and how much to the appropriation of the Harder has owned all of a 310-acre tract of wife's. If such apportionment was prac

land, lying in a compact body, excepting two ticable--and no reason appears to the con• square forties belonging to his wife. The

trary-no injury could result to the landentire tract has been used as one farm but owners from the cases being tried separately. no part of it is occupied as a homestead. In If, in the present proceeding, Harder was 1902 the Kansas & Colorado Pacific Railway denied the right to prove and to recover for Company condemned a right of way for its any increased loss he suffered by the taking road across the tract, lying in part upon the of a part of his own land, growing out of land of Harder and in part upon that of its use in conjunction with that of his wife, his wife. A separate award of damages was his ground of complaint is not that his apmade to each of them and each appealed. peal was tried alone but that a wrong theory In the district court the cases were consoli of the measure of damage was adopted. dated by agreement, and a settlement was The claim of Harder that his land became eftected by which a lump sum was paid in less valuable because the railway company satisfaction of both claims. A judgment took a part of his wife's land and that he was entered in the case providing, among was entitled to recover damages by reason other things, that the company should con thereof was a matter proper to be investistruct and maintain at a designated point in gated and decided in the proceeding based its road bed on the land of Harder a pile upon the appeal from the award made by the bridge 70 feet in length and should leave a commissioners with respect to the tract so 35 foot opening in its fences on each side of taken. If the omission of Harder to join such bridge. When the road was built the in that appeal had the effect to cut him off company put in a private crossing for Harder from a right which he would otherwise have over its track on his land, but shortly after had to be heard in that proceeding, the right wards took it up. In 1903 the company so lost could not be restored by a consolicondemned a narrow strip of ground parallel dation of the two cases.

The district court rightly rejected testi its answer disclaimed all purpose under the mony directed to the question whether the second condemnation to acquire any right to pile bridge constructed by the railway com obstruct the opening under the pile bridge pany conformed to the judgment rendered in by embankments, fences or otherwise, and the first condemnation proceeding. Any fail agreed th:it such bridge should be maintained ure in this resperit could not be redressed in in the future as required by the judgment the present action. So, with regard to evi rendered in the first condemnation proceeddence concerning the taking up of the pri ings. The evidence did not compel the convate crossing over the track already built. clusion that the plaintiff suffered any damage Whether the expense of such crossing, if it in respect to either drainage or crossings. should be replaced, would fall upon the rail He appears to have had a full and fair hearway company or upon the landowner did

ing upon these matters and not to have been not affect the question of how far the latter hampered in respect thereto, either by the was damaged by the taking of the additional rulings that were made upon the admission land. The jury were not told in so many of testimony, or by the instructions that were words that they should take into account the given to the jury. fact that the land of Harder was used in con The judgment is therefore affirmed. All nection with that of his wife, nor was such the Justices concurring. an instruction asked. The charge given, however, included this lang!!! ze: "It is simply the intention of the law that compensa

(74 Kan. 489). tion must go hand in hand with the actual

HARVEY V. WASSON et al. loss or injury sustained by the person whose (Supreme Court of Kansas. Nov. 10, 1906. land is taken. In the determination of tliis

Rehearing Denied Dec. 8, 1906.) question as to what would be full compensa 1. BENEFICIAL ASSOCIATIONS - TRANSFER OF tion, you are not confined to simply awarding

ASSETS- LIABILITY OF DIRECTORS. the plaintiff the value of the land actually

The directors of an insolvent mutual benefit

association, whose by-laws required the paytaken for railroad purposes and considered ment of benefits out of a fund collected for that only as a separate, independent tract of land, purpose, acting in good faith and for the best but you may also consider the use to which

interest of the association and under the direc

tion of the stockholders, transferred the entire the land has been appropriated by the plain

assets of the association to another similar tiff, and its situation and value with refer association, without first paying a fixed benefit ence to other land of the plaintiff with which liability, although there were sufficient funds it is connected in use, and, looking at the

for that purpose on hand. Held, that such act

was a breach of duty imposed upon the directors land appropriated from that standpoint, and

by the by-laws of the association, for which in the light of all the evidence in the cause, they become personally liable to the beneficiary. you will award the full or fair market value 2. SAME-BoxA FIDE PURCHASERS. of the land appropriated by the defendant Such assets cannot be recovered from a

bona fide purchaser for a valuable consideration. company, with such damages, if any, as may

(Syllabus by the Court.) he sustained to another tract by reason of the appropriation of a part for railroad purposes Error from District Court, Shawnee Counadjacent to right of way as may be shown by ty; Z. T. IIazen, Judge. the evidence in the cause." In the absence Action by W. W. Harvey, receiver of the of a request for anything more specific this Masonic Mutual Benefit Society of Kansas, must be deemed sufficient to cover the ground against L. ('. Wasson and others. Judysuggested. The jury had been perinitted to ment for defendants, and plaintiff brings view the premises, and to hear evidence error. Affirmed in part, and reversed and covering fully the relation of Ilarder's land remanded in part. to that of his wife, as regarded situation and

A. B. Quinton, E. S. Quinton, and W. W. use. They were directed to avail themselves

Harvey, for plaintiff in error. Valentine, of all the information so obtained not to dis

Goulard & Valentine, Loomis, Blair & Scandregur any of it.

rett, and W. A. S. Bird, for defendants in The verdict allowed the plaintiff only the

error.
value of the land actually taken, which was
agreed upon. Ilis claims for additional com-
pensation, as shown by an itemized statement

GREENE, J. W. W. Harvey, as receiver accompanying his petition, were based upon

of the Masonic Mutual Benefit Society of the supposition that the use to which the com

Kansas, a corporation, brought this action pany would put the newly condemned land against L. C. Wasson and others, directors would injure him, first, by obstructing the

of the society, and A. S. Andrews and others, opening in the pile bridge under the track as individuals, upon a judgment previously to which he was entitled by the terms of the obtained against the society in favor of first condemnation, thereby interfering with Ilarry S. Moulton to recover a personal the drainage of his land and with his passing judgment against the directors, and to have back and forth under the track, and second certain lands purchased from the society and by impeding his passage across the track at their grantees, and now owned by the other a point where the private crossing had pre defendants, declared to be impressed with a viously been constructed. The company in

The company in | trust to pay the Moulton judgment, and to

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have such conveyances set aside and the land ; also provides that the permaneut fund may held to be trust property of the society for be used for the payment of benefits, in the the payment of the Joulton judginelit, und event that receipts to the benefit fund shill also for the possession of certain noies and fall sliort of meeting such claims as ibey mortgages which the society had sold and mature. The by-law's made it the duty of the transferred, and which are now held by ! directors tu paly such liabilities on demand, some of the defendants. It appears that at ! without waiting for an assessment, out of the time of his death, July 21, 1807, Ilorace the benefit fund, if sufficient; if not, then out Moulton was a stockholder in the Masonic of the permanent fund. Mr. Pomeroy, in Mutual Benefit Society, and was insured his Equity Jurisprudence, in treating of the therein in the sum of $2.000; that larry duties of trustees (section 1062) says "Under S. Moulton was his beneficiary; that on tle general obligation of carrying the trust January 24, 1898, the beneficiary commenced into execution, trustees and all fiduciary perliis action against the society on the bene sons are bound, in the first place, to conform 1iciary certificate, which resulted in a final strictly to the directions of the trust. This judgment in his favor in May, 1902, for $2.- | is in fact the cornerstone upon which all 500. For several years prior to February other duties rest, the source from which all 16, 1900, the society had been paying out other duties take their origin. The trust considerable more money than it was taking itself, whatever it be, constitutes the charin, and during the 101inonths immediately ter of the trustee's powers and duties. From preceding this date there had been paid out it he derives the rule of his conduct. It preover $10,000 more than wis taken in. It scribes the extent and limits of his authority. this time the society was the owner of cer It furnishes the measure of his obligations." tain real estate, notes, mortgages, and bonals, The director's had no discretionary power mentioned in the petition, aggregating about to exercise in the payment of benefits. So $5.5,000. After proper notice thereof, the long as there was any assets in either fund, stockholders of the society held a special it was obligatory upon them to apply such meating February 16, 1900, to determine what funds to the payment of benefits upon deshould be its further course. It was the mund. Moulton's claim had become a fixed expressed wish of a majority of the stock liability against the society when the direlolders, and they requested the directors, to tors parted with the assets, and there were accept a proposition, made to it by the North- funds on hand to pay it which should have Western Life Issurance Company (hereafter been applied thereto. The fact that the clitermed the "Company") of Illinois. Among rectors acted in good faith and in the mallmany others, this proposition containei pro ner which, in their judgment, was for the visions to accept the assets of the Kansas i best interests of all the members, will not reSociety, and to take over all its members into lieve them from liability to Moulton, whose its coinpany, and to continue their policies loss appears to have resulted from their in its company on the same terms and con unauthorizeil conduct. clitions as were originally agreed upon by the Upon the proposition that the purchasers society, and to assume and pay all of its of the real and personal property, formerly other liabilities. The request of the stock the assets of the Kansas society, took such hollers was fully carried out by the directors, property impressed with a trust in favor of and the assets then belonging to the society Moulton, the judgment of the trial court al! passed to the Illinois company.

must be lirined. The by-laws of the corpoIt is unnecessary in this case to determine ration authorized the board of directors to Whether the director's could enter into the invest the permanent fund, and left it to agreement with the Illinois company. It is ! their discretion as to how or in what kind sufficient to determine whether they could! of property it should be invested. The clipurt with the assets of the society without rectors were executing the purposes of the paying the Moulton benefit. The assets of trust when they invested in the bonds, notes the society, according to article 9 of the by and mortgilges, and real estate involved in laws as amended, were divided into three this litigation. Impliecl in tlie authority to separate funds: The benefit fund, the per make such investment is the authority. if manent fund, and the expense fund. Inder Occasion demands, to sell the real estate anul this article the expense fund could never ex indorse and transfer the notes, bonds, and ( $1,000. Ilhenever it exceeded this mortgages. It appears from the facts, ils amount, the excess should be creditel to the i well as the findings of the court. that the benefit fund. It is apparent, therefore, that indorsees of the notes and mortgages took the $1.5,000 of assets on hand when the di them in the usual course of business, for it rector's transferred them to the company, valuable consideration, and without notice, with the possible exception of $1.000 belong either actual or constructive, that they were ing to the expense fund, belonged to either not negotiated by the Kansiis society under the benefit fund or the permanent fund. the authority of its charter. The owners of Article 9 referred to provides that the bene the real estate appear to have acquired such fit fund shall be used solely for the payment property by deeds in all respects formal, of benefits upon the death of a nember. It without actual notice that the Kausas

87 P.--16

society had not parted with such lands in the proper execution of the trust, and there is nothing in the record that gave them constructive notice to the contrary. It is contended that the owners of the land had constructive notice of the want of authority of the Kansas society to convey the land, which was by warranty deed, because the chain of title shows that the defendant's grantor took title from the Illinois company by deed from its trustee. At most, such notice would only require the present owners to know that the trustee was vested with authority to convey, and whether he had such authority could only be litigated by a cestui que trust, or some person interested directly in a proper execution of the trust.

The judgment of the district court is affirmed, so far as it held that the real estate is not impressed with a trust and that the plaintiff was not entitled to recover the notes, bonds, and mortgages; but, so far as it held that the plaintiff could not recover a personal judgment against the directors, the judgment is reversed, and the cause remanded, with

with instructions to enter judgment against such directors. The costs in this court are taxed equally between the directors and the plaintiff in error. All the Justices ('oncurring.

(74 Kan. (58)

STATE v. NIMERICK. Supreme Court of Kansas. Nov. 10, 1906.) CRIMINAL LAW-NEW TRIAL-NEWLY DISCOVERED EVIDENCE.

A new trial will not be granted on the ground of newly discovered evidence, unless it clearly appears that the testimony is new, material, not cumulative, and that it could not with reasonable diligence have been obtained at the time of the trial.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 1.), Criminal Law, $$ 2306, 2318, 2324, 2:28.]

(Syllabus by the Court.)

Appeal from District Court, Allen County ; Oscar Foust, Judge.

Frank Nimerick was convicted of a violation of the liquor law, and appeals.

Affirmed.

Geo. C. Ferguson, for appellant. C. C. (oleman (C. L. Evans and R. H. Bennett, of counsel), for the State.

an affidavit of Charles Fisher, and the testimony given by one of the witnesses on the trial. The affidavit reads: "Chas. Fisher, being first duly sworn according to law, deposes and says: (1) That he is at this time, and has been for more than two years last past, a resident of Allen county, Kansas. (2) That on the 1st day of January, 1904, he leased and rented the following described property situated in Allen county, Kansas, from the agent of the owners for the period of two years, viz., the one-story brick building situated on å tract of land in the southwest corner of the S. W. 14 of section 25, township 24, range 18, which property is more fully described in the eighth count in the information filed in the above-entitled action. (3) That your affiant took possession of said property on the 1st day of January, 1904, and retained possession and control of said property until January 1, 1906, under the terms of a certain lease entered into between this affiant and the agent of the owners of said property. (4) That at no time during the life of the above-named lease did Frank Nimerick have anything to do whatever with the management or control of said place, nor did he work there during that time in any capacity whatsoever; neither did he sell or cause to be sold any intoxicating liquors in or around said place during the two years above named. (5) That your affiant was not in Allen county, Kansas, when the above-named cause came on for hearing; neither did he communicate to the said Frank Nimerick or his attorneys any of the above facts named and set forth until your affiant had returned home, and learned that said Frank Nimerick was charged and convicted of operating and maintaining said described place, and further affiant sayeth not."

The evidence of the witness was in substance, that he had been at the place alleged to be a nuisance several times, and saw the defendant there, who acted as a patron of the establishment, but not as owner, keeper, or helper. No showing was made that the appellant did not know all the facts stated in the affidavit of Fisher at the time of the trial. No effort was made to have Fisher present as a witness. The statement of Fisher that he did not inform the defendant or his counsel of the facts contained in his affidavit, is not equivalent to a statement that the defendant did not know and, by reasonable diligence, could not have known these new facts at or before the time of trial. There is no statement of Fisher that he will testify to the facts stated in his affidavit, upon a further trial of the case, nor even that he will be present as a witness. It is suggested that if this witness had been placed upon the stand by the defendant that he would have refused to testify upon the ground that his evidence would tend to criminate himself. No assurance is given that he would not do so if a new trial should

GRAVES, J. The appellant was convicted in the Allen county district court of selling intoxicating liquor and maintaining a common nuisance, in violation of the prohibitory liquor law. After conviction he filed a motion for a new trial as to the nuisance, which contained several grounds, but he relied solely upon the ground of newly discovered evi(lence. The motion was overruled, and he brings the case here for review. The only error presented is the refusal of the district court to grant a new trial. The showing, made upon the application, consisted of

be granted, nor does the defendant say that his want of diligence in obtaining Fisher's attendance at the trial was due to his belief that such refusal would be made. The showing is insufficient: "Before a new trial will be granted upon the ground of newly discovered evidence, it must affirmatively appear, among other things, that it was through no want of diligence on the part of those applying for the new trial that the new evidence was not earlier discovered and produced at the trial.” Carson v. IIenderson, 34 Kan. 404, 8 Pac. 727; Baughman v. Penn, 33 Kan. 505, 6 Pac. 890; Sexton v. Lamb, 27 Kan. 432; Clark V. Norman, 24 Kan. 515.

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

(74 Kan. 667)

STATE v. MILLER. (Supreme Court of Kansas. Nov. 10, 1906.) 1. CHATTEL MORTGAGES-SALE OF MORTGAGED PROPERTY-EVIDENCE.

Proof of a purpose to defraud is essential to a conviction under section 4259 of the General Statutes of 1901, forbidding the sale of mortgaged personal property without the written consent of the mortgagee, and in a prosecution under such section an instruction is erroneous which undertakes to enumerate all the elements of the offense and makes no mention of the wrongful intent of the defendant. 2. SAVE-FRAUDULENT CONCEAI.MENT-INFORMATION.

Where an information charging the fraudu!ent concealment of mortgaged personal property describes the mortgage as one executed by the defendant and his wife to secure a note signed by them, and the evidence shows that, while the mortgage was signed by both, and included an assumption of liability for any deficiency, the note secured was signed by the defendant alone, the variance is not material, no prejudice being shown. 3. CRIMINAL LAW-COMPLAINT-WARRANT.

It is not required that different felonies prosecuted upon the same complaint and warrant shall be therein stated in separate counts. (Syllabus by the Court.)

Appeal from District Court, Graham County; Chas. W. Smith, Judge.

John I. Miller was convicted of fraudu. lently concealing mortgaged property and selling the same, and appeals. Judgment on first count affirmed, and on second count reversed and remanded.

G. W. Jones, for appellant. C. C. Coleman, Atty. Gen., and John S. Dawson, for the State.

found by the jury in order to convict, omitted all reference to such fraudulent intent, SO that the jury were authorized to find the defendant guilty if he sold the mortgaged property without the written consent of the mortgagee, irrespective of his motive. The question is therefore presented whether the statute (Gen. St. 1901, 8 4259) makes it a crime to sell mortgaged chattels under any and all circumstances unless authority to do so is given in writing? The language of the section involved upon its face seems to bear that construction. It reads: "That any mortgagor of personal property or any other person who shall injure, destroy or conceal any mortgaged property, or any part thereof, with intent to defraud the mortgagee, his executors, administrators, personal representatives, or assigns, or shall sell or dispose of the same without the written consent of the mortgagee, or his executors, administrators, personal representatives, or assigns, shall be deemed guilty of larceny.” A somewhat similar statute was so construed in State v. Reeder, 36 S. C. 497, 15 S. E. 544, and the construction was approved in State v. Rice, 43 S. C. 200, 20 S. E. 986. Beard v. State, 43 Ark. 284, is to the same effect, but is accompanied by a strong dissent. State v. Bronkol, 5 N D. 507, 67 N. W. 680, leans in the same direction, but there the use of the word "willfully" in the statute affects the matter. On the other hand, expressions indicating a contrary view are to be found in the following cases, in none of which, however, was it necessary to decide the question. Foster v. State, S8 Ala. 182, 7 South. 185; State V. Hurds, 19 Neb. 316, 27 N. W. 139; State v. Ruhnke, 27 Minn. 309, 7 N. W. 264. A similar question was involved in State v. Eastman, 60 Kan. 557, 57 Pac. 103. The statute there under consideration declared it to be embezzlement for an agent to fail to pay over money to his principal under certain circumstances, nothing being said with regard to his motive. Complaint was made of the failure of the trial court to instruct the jury that no conviction could be had unless they found that the defendant intended to convert the money to his own use. The court said : "The general rule, of course, is that a guilty intent is a necessary ingredient of crime. Bishop, Stat. Crime, $$ 132, 231, 351, 362. We do not understand it to be disputed in this case as a general proposition. However, its application to the case is denied because of the failure of the statute to declare intent to be an ingredient of the offense. There are some cases which hold that, unless made so by statute, a guilty intent is not necessary to the commission of offenses mala prohibita; that is, not inherently bad, only bad because prohibited. The offense charged against the defendant in this case is not bad merely because prohibited, but it is malum in se—bad in itself. It is a species of embezzlement, and is classified by the statute in immediate connection with the common-law

MASON, J. John I. Miller was prosecuted upon an information charging him in one count with fraudulently concealing mortgaged personal property and in another with selling such property without the written consent of the mortgagee. He was convicte! upon each count, and appeals.

The second count contained an allegation that the sale complained of was made with the purpose of defrauding the mortgagee, but the instructions upon that branch of the case, in enumerating the matters necessary to be

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