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to indicate that the river was or was not intended to be the boundary line of the plat or lots. The lots on the river front abutting on H street were staked out on the ground as extending back 49 and 50 feet respectively from River street, and were so indicated on the plat filed. If we must go back by construction 35 or 40 feet farther to the meander line, simply because the parties filing the plat had title to that point, there is no reason why we should not extend them still farther across the adjacent tide lands, if the parties filing the plat had title thereto.
We are satisfied that the plat and the streets indicated thereon do not extend beyond the stakes placed along the river bank as indicated on the official plat, and the judgment is accordingly affirmed.
MOUNT, C. J., and FULLERTON, HADLEY, CROW, ROOT, and DUNBAR, JJ., concur.
(74 Kan. 208) JOIINSTON V. MARRIAGE. (Supreme Court of Kansas. July 6, 1906.) Petition for rehearing. Denied. For forcer opinion, see 86 Pac. 461.
lot fronting on street as shown by the plat is 49 feet in length and the west line 37 feet. As stated above, the side lines of the lots in question are not joined on the river front. In the year 1905 Benn and wife conveyed to the plaintiffs in this action a strip of land lying between the southerly boundary of this plat and the government meander line. If H street should extend to the meander line, the strip of land claimed by the plaintiffs lies within the street, but if the street does not extend beyond the southerly boundary of the adjacent lots as indicated on the phat, the title of the plaintiffs is complete. This action was brought by the plaintiffs against the city of Aberdeen to quiet their title to the strip of land last described. The court gave judgment according to the prayer of the complaint, and from that judgment, the city appeals.
It is not contended that there was any dedication of H street beyond the confines of the plat, and if the street terminates at the southerly-most point of the adjacent lots abutting thereon, as indicated by the official plat, the judgment is correct and must be affirmed. If on the other hand, the plat and the lots abutting on H street extend back to the government meander line, notwithstanding the survey and the plat to the contrary, it is only reasonable to hold that the street likewise extends to the meander line and the judgment should be reversed. Samuel Benn was called as witness on the part of the respondents and testified that a considerable portion of the river bank above the meander line had been washed away at the time he filed his plat; that he was in doubt as to the validity of his title below the line of ordinary high tide, and for that reason did not extend the plat beyond the bank of the river as it existed at the time the plat was filed. It was further shown that the parties who filed the plat conveyed the lots bordering on the river front shortly thereafter, and in every instance, conveyed the strip of land lying between the lots as indicated on the plat and the meander line by separate instrument or description. This testimony was objected to as incompetent and immaterial. The testimony was perhaps competent for the purpose of showing the Intention of the parties in filing the plat and the contemporaneous construction they placed upon it, but this question we do not deem it necessary to decide. No doubt where land is conveyed described as bounded by, or upon, or as running to, or along the sea, or shore or bank of a river or stream, the grant carries the entire estate of the grantor, whether limited by high or low water mark, or by the thread of the stream; but that rule has no application in this case. The lots are particularly described on the plat and the plat itself makes no reference to the river. Of course the plat and the extrinsic evidence disclose the fact that the river flows in close proximity to the platted land, but there is nothing
MASON, J. In the opinion heretofore written in this case it was stated that the record did not show that it contained all the instructions that were given, and two assignments of error were disposed of wholly or in part upon this ground. In a motion for A rehearing the plaintiff in error contends that, although an express recital to that effect is wanting, a fair inference can be drawn from the record that it does contain all the instructions, and this contention proves to be correct. The assignments involved have therefore been re-examined in the light of this fact.
The other arguments presented in the motion, especially those with regard to the rejection of certain evidence, have also been carefully considered, and the conclusion is reached that, while the questions discussed are not free from doubt, no such error is shown as to justify a reversal of the judg. ment.
The motion is accordingly overruled.
(74 Kan. 437) VAN DUSEN V TOPEKA WOOLEN
MILL CO. (Supreme Court of Kansas. Oct. 6. 1906. 1. ADMINISTRATORS-COMPROMISE OF CLAIMS
An administrator has no authority to a cept less than its full amount ir satisfaction of a demand that accrued in the lifetime of his decedent, except by consent of the probate court. Atna Life Ins. Co. v. Swayze, 1 Pac. 36, 30 Kan. 118, followed.
[Ed. Note.-For cases in point, see vol. 22, Cent. Dig. Executors and Administrati rs, $$ 384392.]
In a suit by an administrator to collect a debt due to an insolvent estate, a claim which accrued in the lifetime of the decedent, and which the defendant has purchased at a discount since his death, cannot be used as an offset.
[Ed. Note.-For cases in point, see vol. 22, Cent. Dig. Executors and Administrators, 88 1702, 1703.) 3. JUDGMENT--COLLATERAL ATTACK.
An order of the probate court allowing a claim against the estate of a decedent is not open to a collateral attack, upon the ground that the statute of limitations had run against such claim before its allowance.
[Ed. Note. For cases in point, see vol. 22, Cent. Dig. Executors and Administrators, $ 849; vol. 30, Cent. Dig. Judgment, 8 914.)
(Syllabus by the Court.)
Error from District Court, Shawnee County; A. W. Dana, Judge.
Action by W. H. Van Dusen against the Topeka Woolen Mill Company. Judgment for defendant, and plaintiff brings error. Reversed.
Austin & Hungate, for plaintiff in error. Wm. F. Schoch, for defendant in error.
MASON, J. On September 26, 1898, a de cree' was rendered by the district court of Shawnee county declaring and marshaling a number of liens against a piece of real estate, which was ordered to be sold for their payment. Among those liens was one for $494.65, awarded to Sarah E. Weidler, as the administratrix of the estate of Wilhelm Weidler, deceased, based upon a right that had accrued in the lifetime of such decedent. Afterward the Topeka Woolen Mill Company acquired title to the real estate affected, and bought up all the liens excepting that of the Weidler estate. It claimed that it had also compromised and satisfied that one, and therefore asked that an order be made directing the sheriff, instead of selling the property, to make a conveyance to the company. Such an order was accordingly made; but, as the claim that the Weidler lien had been satisfied was disputed, the sheriff's deed was directed to be made, and was made, subject to whatever rights the Weidler estate might have, as should thereafter be determined. On September 9, 1903, W. H. Van Dusen, having procured from the administratrix an assignment purporting to transfer the lien to him, began an action against the company to have it declared and enforced. Upon a trial a judgment was rendered for the defendant, from which the plaintiff prosecutes error.
The defendant in error suggests various theories upon which the decision may have been based; and, as there is nothing in the
ecord to disclose upon which of them the trial court in fact proceeded, it will be necessary to examine each. It contends that the decree granting the administratrix a lien was not such a judgment as would support an independent action. No good ground is ap
parent for the contention. The decree was a final determination of the rights of the various parties, providing for a sale of the property and the disposition of the proceeds. As it originally stood there was no occasion for suing upon it; but when the court ordered that the sheriff, instead of selling the property, should deed it to the mill company, subject to the disputed rights of the Weidler estate, a new action became the natural and appropriate, if not the only, means of determining the question so reserved. The statute of limitations was invoked by the defendant, perhaps because the substance of the decree of September 26, 1898, had been announced on the 6th of that month. The judgment rendered on the 26th, however, was complete in itself, and can be regarded as originating a right capable of enforcement by action. In the brief of defendant in error it is claimed that the plaintiff did not satisfactorily prove that the lien had been assigned to him by the administratrix, and oral testimony is cited as bearing on the question. No such issue was involved. A written assignment was pleaded, and its execution was admitted, because not denied under oath. The testimony referred to related to an entirely different matter.
The undisputed facts, therefore, establish a prima facie case for the plaintiff, and he was entitled to recover, unless the evidence relied upon by the defendant, if accepted as true, showed an affirmative defense. This evidence, although contradicted in important particulars, may, for present purposes, be deemed to have shown this state of facts: Representatives of the mill company entered into negotiations with the attorney of the administratrix, as a result of which it was agreed that the claim against the real estate should be compromised and satisfied by the payment of $200. This sum was accordingly paid to the attorney. The administratrix took no part in the arrangement, and the probate court made no order concerning it. No release of the lien was executed then or later; the attorney of the administratrix stating that he could not get the matter fixed up at once, because he could not reach his client. As security against any failure to carry out the agreement, however, he procured an assignment to be made to the mill company of a judgment for $959.89, which had been rendered against Wilhelm Weidler in his lifetime and which had been revived and allowed as a demand of the fourth class against the estate. He represented that this judgment was superior to any other claim against the estate, and could be used as a set-off against the lien or judgment which the company desired to have discharged. At this time no other claim had been exhibited against the estate, but later two were presented and allowed as demands of the second class; one for $325 in favor of the attorney of the administratrix, and
the other for $228 in favor of W. II. Van action, mandamus will lie to compel the judge Dusen, the present plaintiff. Upon these
of such court to act upon the motion. facts the defendant contends, first, that the
[Ed. Yote.For cases in point, see vol. 33,
Cent. Dig. Mandamus, § 97.] claim against its property was extinguished; and, second, that, if this is not the case,
(Syllabus by the Court.) then it was entitled to set off against this Application of Charlotte E. Bleakley for claim the demand against the estate which writ of mandamus to Charles A. Smart, had been assigned to it.
judge of the Fourth judicial district. Writ The first contention fails, because the com granted. promise, even if acquiesced in by the administratrix, could not become effective with
This is an original action in mandamus out the approval of the probate court. Etna
brought against the judge of the district Life Ins. Co. v. Swayze, 30 Kan. 118, 1 Pac.
court of Douglas county to obtain from him 36. The second also fails. The estate was
a ruling upon a motion for a new trial. insolvent; the lien in question being its
The controversy involves what has become only asset. The mill company could not
known as the "Incubator Baby Case.” The avoid the payment of the debt it owed to
history of the events ending in the refusal the administratrix by buying at a discount
of the district court to act upon the motion after the death of the decedent a claim
for a new trial is as follows: Charlotte E. against his estate which accrued in his life
Bleakley, claiming to be the mother of time. Biscoe v. Moore, 12 Ark. (7 Eng.) 77;
Edith Bleakley, an infant exhibited as one
of the "incubator babies at the St. Louis Cook v. Lovell, 11 Iowa, 81; Schmidt V. Crafts, ? Brev. (S. C.) 266: Mitchell v.
World's Fair, brought proceedings in habeas corpus before
the Honorable Emery C. Rucker, 22 Tex. 66; Fappsoldt's Adm’rs v. Jones, Harp. Harp. (S. C.) 109; 2 2 Woerner,
Graves, circuit judge at Rock Island, Ill. A American Law of Administration, p. 328. $
judgment was rendered in her favor on Ju
ly 14, 190.), against Mr. and Mrs. Barclay, 389. It is argued that to permit the offset
husband and wife, in which that court (ould prejudice no one but the holders of the
found that the infant, Edith, is the daughter two claims which had been allowed as de
of said Charlotte E. Bleakley and J. J. mands of the second class; that one of
Bleakley, and was born February 15, 1904. these claims--that of the attorney of the
It was further adjudged that Charlotte E. administratrix-should be excluded from con
Bleakley was a fit person to have the cussideration upon principles of equitable es
tody and control of the child, and that it toppel, and that the other should be ignored
Was for the best interest and welfare of because it showed upon its face that the
the child that she be given to her mother, statute of limitations had run against it
and that a certain deed of adoption, exebefore it was presented to the probate court.
cutel hy Charlotte E. Bleakley to the BarThe challenge of the attorney's claim need
clays, by the terms of which the Barclays not be considered, for that directed against
claimed to be entitled to her possession and the other one is manifestly bad. The allowance of the demand was, in effect, a
custody, be set aside and canceled as void.
The Barclays were ordered to deliver posjudgment, and the question of the statute
session of the child to Mrs. Bleakley, who of limitations cannot be raised in a collat
afterwards returned with it to her home in eral attack upon it.
Lawrence, Kan. About two months later, It follows that the judgment must be reversed, and the cause remanded for further
on September 5, 1905, the Barclays brought
proceedings in habeas corpus in the district proceedings in accordance with the views
court of Douglas county, setting up that here expressed. All the Justices concurring.
they were citizens of Rock Island county, Ill., and that the child, Edith, was unlaw
fully restrained of her liberty by reason of (it kan. 476)
a judgment of the circuit court of Rock BLEAKLEY V. SMART, Judge.
Island county, which judgment they alleged
was obtained by Charlotte E. Bleakley on (Supreme Court of Kansas. Oct. 6, 1906.)
account of her falsely and fraudulently pre1. HABEAS CORPUS-RIGHT OF APPEAL. An appeal will lie from a judgment of the
tending to be the child's mother, and setdistrict court in habeas corpus proceedings de ting up in general terms the Illinois judg. termining the rights of conflicting claimants ment, and averring that the relators had to the custody of a child.
first learned the truth in reference to the [Ed. Note. For cases in point, see vol. 23, Cent. Dig. liabeas Corpus, $ 102-106.]
child's parentage a short time previous to
the making of their application. Mrs. 2. MANDAMUS-REFUSAL OF STAY. Where the district court refuses, on prop
Bleakley moved to quash the writ upon the er application, to grant a defeated party in a ground that it was an attempt by collateral civil action a stay of proceedings under chapter attack to impeach a final judgment of a 322, p. 539, Laws 19905 (Gen. St. 190.7, § 5502),
court of competent jurisdiction; and that and after the Supreme Court has granted a stay of proceedings on the judgment refuses to act to do so would amount to a refusal to give upon a motion for a new trial pending in the full faith and credit to the judicial proceed
ings of another state, and because the pe March 3, 1906, the court heard the motion tition of the Barclays failed to allege that and adjudged that Mrs. Bleakley by her acany change had taken place in the condition tion in willfully removing the child from and surroundings of the child since the for the court's jurisdiction was then, and from mer judgment. The motion to quash being the 25th day of January had been continudenied, a return to the writ was made, set ously, in open contempt of court. ting up in full the record of the Illinois ordered that the motion for a new trial be judgment, and, in addition, the same grounds set for hearing on the 30th day of March of defense relied upon in the motion. At and would be heard on that day, providing the trial the district court decided that the
Mrs. Bleakley produced the child in open proceedings in Illinois were not res judicata, court at that time, but that, in default of and that the only question involved in the so doing, the motion to strike from the files Illinois case was the question of the validity would be sustained. In the meantime a of the deed of adoption, and on January transcript of the proceedings was brought 2.3th, after a hearing lasting more than a to the Supreme Court, together with a peweek, adjudged that Charlotte E. Bleakley tition in error, and this court on March 21st was not the mother of the child, that the re granted a supersedeas, staying the issuance lators were entitled to her care and custody, of any execution upon the judgment upon a and that it was for her best interest that
bond in the sum of $500, which was duly she should be given into their care and filed and approved. On Larch 30th Mrs. control. It was adjudged that the child Bleakley filed a petition in the district court should be delivered immediately to the Bar of Douglas county to modify the journal enclays, upon their execution of a bond to the
try of March 3d, setting up the granting of respondent in the sum of $4,000, conditioned the supersedeas by the Supreme Court, and that the relators should produce the child
asking to be permitted to purge herself of Within the court's jurisdiction in case the contempt and to be allowed to argue her moSupreme Court should modify, vacate, or tion for a new trial. All of these motions l'everse the decree of the district court. A were by the court denied, the court holding special execution was directed to issue com
that Mrs. Bleakley was still in contempt of manding the sheriff to forthwith enforce the
court, and that inasmuch as it appeared that decree, and turn over the child to the relat
since the judgment and order of March 3d ors. Thereupon Mrs. Bleakley filed a mo she was then prosecuting proceedings in er tion for leare to give a bond to stay pro
ror in the Supreme Court, and inasmuch as (eedings, under Law's 1905, p. 539, c. 322,
the Supreme Court had assumed jurisdiction until the case could be brought to this court. of the cause and was then exercising it, The court denied her motion and refused
the court declined to hear her application. to fix the amount of a supersedeas hond or
Again, on April 21st, at the next term of the to permit her to give one. She then filed a district court, the attorneys for Mrs. Bleakmotion for a new trial, but this motion the
ley made another attempt to have the court court continued until the next term. She
hear her petition to modify the order of then renewed her application for leave to
March 3d and to be permitted to save their gire a bond to stay proceedings, pending an exceptions to the ruling of the court, which appeal, which was again denied. Excep-applications were refused, the court declintions were saved to the several rulings of
ing to state whether the motion for a new the court. During all these proceedings trial was or was not still upon the docket, Mrs. Bleakley was present with the child, or to make any order with reference to the but at 4:30 o'clock in the afternoon, when
case. The court stated: “I simply say her last application for a stay was refused, what I have said before, that so long as she left the courtroom, taking the child with
the respondent in this case is in contempt. her. A half hour later the Barclays filed keeps the child beyond the jurisdiction of their $4,000 bond and the special execution
the court, and is prosecuting an appeal in was issued and placed in the hands of the
error in the Supreme Court, I will decline to sheriff. In the meantime Mrs. Bleakley had
act upon any motion or application of hers." disappeared, and it afterwards developed
Thereupon these proceedings in mandamus that she had taken a train and gone with were begun to compel the judge of the disthe child to Moline, ill., the home of the trict court to act upon the motion for a Barclays, and in the county where the judg
new trial. ment in her favor had been rendered. On
E. F. Ware. W. B. Brownell, and J. Q. A. February 17, 1906, a verified motion was
Norton (Gleed, Ware & Gleed, of counsel), presented to the district court on behalf of
for plaintiff. J. H. Atwood and Bishop & the Barclays, reciting the facts in regard
Mitchell, for defendant. to the removal of the child from the jurisdiction of the court, and asking that Mrs. PORTER. J. (after stating the facts). Bleakley be required to bring herself and Numerous contentions are made in regard the child within the jurisdiction of the to the principles of law which it is said are court, or, in default, that she be adjudged involved in this controversy. Only a few guilty of contempt, and that her motion for of them in our view need be decided. a new trial be stricken from the files. On 1. It is contended by defendant that the
judgment of the district court is not ap tween that and ordinary habeas corpus propealable, and that therefore this court was ceedings was recognized. The court uses without authority to grant a supersedeas this language: "After a careful examinastaying execution of the judgment, and lacks tion of the authorities we are inclined to jurisdiction to order the court below to act the opinion that in cases of this character, upon the motion for a new trial. It is said where the controversy arises over the custhat no motion for a new trial was proper; tody of a child, the real issue is one between that the district court has concurrent juris private parties contesting a question of pridiction with the Supreme Court in habeas cor vate right, under the form of habeas ccrpus pus; that no provision is made by statute proceedings, in which there arises no quesauthorizing an appeal from a judgment or tion of personal liberty, and in consequence decision in habeas corpus; and that the weight all matters in issue arising upon the same of authority is to the effect that, independent state of facts determined in the prior proof any statutory provision, an appeal will ceeding should be regarded as settled and not lie. Manifestly the question whether concluded." It is said in Freeman on Judythis court may review a judgment or deci ments (4th Ed.) § 1324: "The principle oí sion of the district court in habeas corpus res judicata is also applicable to proceedings is primarily involved. Great conflict of on habeas corpus, so far at least as they opinion exists upon the question whether involve an inquiry into and a determination a judgment in habeas corpus is appealable. of the rights of conflicting cla mants to the Many courts hold that, in the absence of stat custody of minor children. * * * The utory provision, where the action is strictly principle of public policy requiring the apone to obtain the release of a person who plication of the doctrines of estoppel to juclaims to be illegally restrained of his dicial proceedings, in order to secure the liberty, no appeal lies. Other courts recog repose of society, are as imperatively denize a distinction which sometimes necessa manded in the cases of private individuals rily arises by reason of the nature and scope contesting private rights under the form of of the decision, and have held that in that proceedings in habeas corpus as if the liticlass of habeas corpus proceedings, where gation were conducted in any other form." the right to the custody of a minor child is In re King, supra, is not in conflict with the thing determined, an appeal will lie. The this, nor with the doctrine in Re Hamilton, action is said to partake of the nature of a supra. It merely adds the modification that private suit, in which the public has no this court will consider the best interest of concern. The rights of the parties are de
the child as always paramount to the rights termined as in any civil action, and, being a of contending claimants, and will not be civil action, the right to appeal follows. bound by the hard and fast rule adopted by
Defendant relies upon the decision in Re some courts, to the effect that it must first King, 66 Kan. 695, 72 Pac. 263. In that be made to appear that a change in the concase we declined to regard a former judg dictions surrounding the child has occurred ment by another court in habeas corpus for since the former adjudication. the custody of a child as absolutely conclu A well-considered case directly in point sive and binding upon this court. The con is State, Baird Pros., v. Baird & Torrey, trolling consideration, however, is expressly 19 N. J. Eq. 481. There it was decided that declared to be that of the welfare of the an appeal in such a case will lie, notwithchild. It is there said: “We agree that, so standing the proceedings were by habeas far as such a proceeding is to be considered corpus, and that while in technical strictness as a mere trial of conflicting private rights, the office of the writ is simply to remove unthere is no reason in the nature of things lawful restraint, and where this is the only why the doctrine of estoppel by former ad purpose the right to appeal was a debatjudication should not apply. *
* When able question, it is said that in habeas corpus a court in a proper proceeding, wherein con for the custody of a child the petition takes flicting claims to the right to the custody of a wider scope and invokes the exercise of a child are litigated, takes the custody from that power of the court which is quasi the parents and bestows it upon some other
parental. It was held that the court in person, the legal right of the parent is to
case acts under its general juristhat extent extinguished, and the new custod diction of the affairs of infants, and not ian has in that respect the same right former by force of its more limited jurisdiction by ly held by the parents. The parents may not proceedings in habeas corpus. See, also, In dispute such right nor relitigate it, except re Sneden, 105 Mich. 61, 62 N. W. 1009, 55 upon a new state of facts. But the court Am. St. Rep. 435; 9 Encycl. P. & P. 1071; 15 has the same power to change the custody A. & E. Encycl. Law, 213; 5 Current Law, as against the new custodian as it had orig 1619, tit. "IIabeas Corpus," $ 8; Mahon v. inally against the parents.” In re Hamil People, 218 Ill. 171, 75 N. E. 768; Cormack ton was decided at the same term. 66 Kan. v. Marshall, 211 Ill. 519, 71 N. E. 1077, 67 754, 71 Pac. 817. The exact question there L. R. A. 787; People ex rel. Lawrence v. was whether a former judgment in habeas Brady, 56 N. Y. 182; People v. Court of corpus determining the custody of a child Appeals, 27 Colo. 405, 61 l'ac. 532, 51 L. was res judicata, and the distinction be R. A. 105. In the latter case the Colorado