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case where the controversy involves the

court say: "Whatever may be the rule in possession of her child under the laws of this regard applicable to the usual judgment Illinois and under the protection of its courts." in habeas corpus discharging a party from Beyond any question she was guilty of conillegal imprisonment, we think that in a tempt in removing the subject of controversy

from the jurisdiction of the court. It is right to the custody of an infant, although urged by her counsel that she was to some the writ of habeas corpus is used to deter extent justified in her conduct by the action mine that right, it is nevertheless a civil of the court in refusing to grant her a stay suit, and, the judgment rendered being a of execution. Her application to be perfinal adjudication in regard to such custody,

mitted to give a stay bond was made twice, it is clearly reviewable by the Court of

once immediately after the judgment was Appeals, under the statute creating that

rendered and again after the motion for a court.” Some of the authorities cited, supra, new trial had been by the court continued are based upon the conclusiveness of the

to the next term. Both of these applications former decision, proceeding upon the theory were made under the provisions of chapter that the appealability depends entirely upon

322, p. 539, Laws 1905, which chapter reads whether the former judgment is res judicata. as follows: "Section 1. That after the rendiBut it is not the rule that to constitute a

tion of a judgment or decree in any civil acfinal judgment for the purposes of appeal it

tion in any of the district courts of the state must be a bar to another suit. At common

of Kansas, that upon the execution of a law in the Court of King's Bench a final

good and sufficient bond, to be approved by judgment did not mean a final determina

the court, by the party or parties against tion of the rights of the parties, but final

whom such judgment or decree may be renmerely as to the particular suit. The same

dered, it shall be the duty of such court to construction of the meaning of the term

stay execution or order of sale upon such judg"final judgment" has been adopted by the

ment or decree for a reasonable length of Supreme Court of the United States in

time, for the purpose of allowing such party Weston et al. v. City Council of Charleston,

or parties against whom such judgment or 2 Pet. 419, 7 L. Ed. 481. To the same effect,

decree may be rendered to file proceedings in see Colorado Eastern Ry. Co. v. Union Pac.

the Supreme Court of Kansas to reverse, vaRy. Co., 94 Fed. 312, 36 C. C. A. 263. A

cate or modify such judgment or decree.” judgment in forcible entry and detainer can

Aside from any express statutory provision, not be pleaded as a bar to another action by

it is generally the policy of the courts to preeither party, but it is, nevertheless, a final judgment from which an appeal will lie.

serve the status quo of the parties, pending Redden v. Tefft, 48 Kan. 302, 29 Pac. 157.

an appeal, upon proper security being given, And many other orders and judgments which

when that may be done without manifestly are not res judicata are final for the purposes however, declares in positive terms that it

defeating the ends of justice. This statute, of appeal. Another quite pertinent consideration sug

shall be the duty of the court to grant the gests itself, which is that, whether the judg. stay... It gives a party situated as was the ment was or was not an appealable one, this

plaintiff, when the judgment was rendered, a court by granting a stay of proceedings as

right which depends in no respect upon the sumed to have jurisdiction, and until ulti

discretion of the court. Counsel for defendmately decided by this court to the contrary

ant suggest a supposed case in habeas corpus it is appealable so far as that question con

for the custody of a young girl, where it cerns or affects this proceeding. We hold,

might be clearly established that the de. however, that the judgment of the district

feated party intended to keep her for the court is one from which an appeal will lie.

purpose of prostitution, and it is argued that The effect of the Illinois judgment is mani

to permit him under such circumstances to festly not involved in this proceeding, and stay proceedings on the judgment would detherefore nothing said herein in reference to

feat the ends of justice. It is sufficient to the conclusiveness of such judgments is de

say that our habeas corpus act makes excisive of that question.

press provision by which the court or judge 2. Plaintiff in her petition for this writ of

may make such order for the temporary cusmandamus, after reciting the proceedings be tody of the person as justice may require; low, says: “Thereupon Mrs. Bleakley, in

and, in the absence of such provision by stattending no disrespect to the court, but feel

ute, the court would have inherent power in ing that her rights had not been respected,

a case like the one supposed. and that the court had arbitrarily deprived

The learned judge of the trial court must her of her right to give bond to stay execu

have misconceived the force and effect of tion, which bond slie could give in any sum

chapter 322, p. 539, Laws 1905, in refusing to which a court could reasonably require, and permit Mrs. Bleakley to give a bond and stay fearing that the illegal act of the court might proceedings. Nothing in the findings of the cause her to lose her baby, she took the train court seem to warrant the inference that to Moline, Ill., the home of the relators in there was any special necessity for placing the Kansas suit, and is now an exile from the child in possession and control of the Kansas and her home, resting securely in the / Barclays pending the final determination of

the rights of the parties. The $1,000 bond ! The plaintiff in error urgently objects to which the court required of the successful this statement of the law, and insists that party was one for which no express provi it is opposed to both reason and authority. sion is made by statute, and changed the This particular point received very little atstatus of the parties. Conditions might exist tention at the first argument of the case, and which would authorize a court to require very few cases directly in point have since such a bond, but the one which Mrs. Bleakley been cited by either party. Under some of asked to be permitted to give is expressly

the older cases, especially in England, the provided for by statute, and preserved the consignee was required to first pay the freight status quo. IIer application should have and bring an action of damages afterwards. been granted and the proceedings stayed.

This rule obtained because of the law then When this court granted a stay of further

existing, concerning the forms of action in proceedings on the judgment, she was no

which a set-off for unliquidate damages longer in continuous contempt in failing to

might be litigated. Under the modern proreturn with the child, because the district

cedure of this country, however, and especcourt no longer had power to enforce the ially in this state, where the policy is to litijudgment, or jurisdiction to act in the case gate every controversy between the parties, in further than to pass upon the motion for a the same suit, and thereby avoid circuity and new trial. Our action in superseding the

multiplicity of actions, this class of cases canjudgment did not in any sense relieve her not be controlling. 25 Am. & Eng. Enc. of from the charge of or penalty for her pre

Law (20 Ed.) 184. Apparently the plaintiff in vious contempt; but, as observed, over that

error relies upon the case of Miami Powder we have no jurisdiction. In order to com

Co. v. Port Royal, etc., 38 S. C. 78, 16 S. E. plete the record for review by this court, it

339, which may also be found in 21 L. R. A. became at once the duty of the court below

123, and the cases therein cited. This case to rule upon the motion for a new trial by

is cited in the former opinion in support of either granting or denying it. This is all

the proposition in question. The citation that is directly involved in the proceeding.

was made upon the assumption that the sylThe writ will therefore issue, directing de

labus of the case stated the law as given fendant to pass upon the motion for a new

in the opinion, but on further examination trial. All the Justices concurring.

they do not seem to be alike. We have since carefully examined that case, and find the

only question really decided by it is that the (73 Kan. 295)

evidence in the case did not justify the inMISSOURI PAC. RY. CO. V. PERU-VAN structions given. The trial court in that ZANDT IMPLEMENT CO.

case adopted the law as stated by this court, (Supreme Court of Kansas. Oct. 6. 1906.) and to which the plaintiff in error objects. In CARRIERS — LIEN FOR FREIGIIT DAMAGE TO

doing so it followed Ewart v. Kerr, Rice (S. GOODS--CONVERSION.

C.) 203, which had been affirmed in 2 McMul. Where a common carrier becomes liable

(S. C.) 141. Neither of these cases have been to the consignee of goods for damages to the

modified or reversed, but, so far as we have property received in transit, and the amount of such damages equals or exceeds the freight

been able to ascertain, still stand as the law bill on the damaged goods, the lien of the car of South Carolina. The Supreme Court did rier is thereby extinguished, and the consignee

not reverse the trial court because the law is entitled to the possession of such goods without payment of freight, and in such a case

given was erroneous, but for the reason that, refusal of the carrier to deliver the goods to if correct, it did not apply to the facts of the consignee upon demand constitutes a con that case, as the evidence did not show whethversion.

er the damages claimed equaled or exceeded [Ed. Note. For cases in point. See vol. 9,

the freight bill. The court made the suggesCent. Dig. Carriers, $$ 338, 339, 838, 900.)

tion, apparently for the future guidance of (Syllabus by the Court.)

the trial court, that the rule of law stated On rehearing. Affirmed.

in the cases of Shaw v. Railroad, 5 Rich. Law For former opinion, see 85 Pac. 408. (S. C.) 462, 57 Am. Dec. 768; Nettles v. Rail

road, 7 Rich. Law (S. C.) 190, 62 Am. Dec. GRAVES, J. This case was decided at the 109, was more applicable to the facts of that March sitting of this court, 1906. See 85 Pac. case than the one followed. This suggestion 408. A rehearing was granted upon the prop is not inconsistent with the former cases folosition of law stated in the second syllabus, lowed by the trial court, nor with the rule which reads: “When a common carrier negli stated by this court in the syllabus under yently delays the delivery of goods, so that the consideration. In the case of Shaw v. Raildamages occasioned by such delay exceeds road, supra, the goods shipped consisted of the amount of freight due for the transporta- | 10 barrels of molasses. Two of them leaked tion of such goods, the consignee may right during transit. The consignee accepted eight fully demand the delivery of the goods, with barrels, but refused to accept the two that out payment of freight, and a refusal by the were leaking, and sued the carrier for the carrier to surrender possession upon such de value of two full barrels. It was held mand is wrongful, and amounts to a con that the plaintiff should have received all of version."

the barrels, and sued for the value of the

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MISSOURI PAC. RY. CO. v. PERU-VAX ZANDT IMPLEMENT CO.

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amount of loss by leakage. In the case of jected to by the plaintiff in error.

He argues Nettles v. Railroad, supra, the carrier ten- · that the right of the carrier to possession dered the goods to the consignee, who refused | rests upon its lien for freight; that where the to accept them, and sued for the value of carrier becomes liable to the consignee, on the entire shipment. It was held that he account of damages to the property while ought to have received the goods, and sued for in transit, in a sum equal to or greater than the difference in their value when tendere, the freiyht bill, the lien therely becomes and when tlier ought to have been ciliveres. extinguished, because, "where there is no The damages were caused by delay in transit, ' debt. there can be no lien.” He argries but no questi as to payment of freight : further, that under such circumstances the was considered. The discussion relates to right of possession is in the consignee, ind the proper measure of damages. The case a refusal of the carrier to deliver upun decannot, therefore, be considered of any weight mand constitutes conversion. In support of as illl 11thority here. In the case of Miami these contentions he cites the case of Dyer Powder ('0. r. Pt. Royal, supra, the goods : v. Grand Trunk R. R., 42 Vt. 411, 1 Am. Rep. shipped consisted of kegs of powder, a few 330. This was an action of replevin, but only were injured, the consignee refused to the court said in substance that, when the receive any of them, and pay the freight, damages to the goods equal the freight bill. but sued in trover for the value of all. It : one delt olisets the other, and the lien of will be observed that the damages com the carrier ranishes, leaving the right of plained of were not the result of delay in : possession in the owner. In the case of delivery, but because of a direct injury to a Moran Bros. v. Northern Pacific R. R., 53 part of the goods. In such a case, it is not · Pac. 50. the Supreme Court of Washington unreasonable to say that when freight is ship said: "If the carrier has negligently delayed ped in bales, barrels, keys, or other forms, | delivery of goods, or otherwise subjected where the injured parcels can be readily sep)- ! itself to liability for damages in respect to arated from those which are uninjured with the property carried, equal to or greater than out affecting the value of the shipment as a the amount of the freight, the consignee may whole, the rule as to whether the consignee obtain replevin without a tender; and the would be entitled to the possession of the en claim for freight and the claim for damtire shipment without payment of freight ages may be adjudicated in the replevin might be different from that which should be suit." (obbey on Replevin, § 51.5, reads: applied when the entire shipment consists of "The right of a carrier to retain property a single machine, which cannot be separated until its li:rges for carriage are discharged without destroying its value. We conclude, rests upon ihe performance of the contract therefore, that the case of Miami Powder ('o. of carriage upon its part. If it has negliT. Pt. Royal, supra, does not decide the ques. gently delayed the delivery of the property tion here in controversy either way. The

at its destination, or otherwise subjected facts in the two cases are dissimilar. The itself to liability for damages to the conother cases cited by the plaintiff in error re signee in respect to the property carried, late to what constitutes a conversion, and to that woulli disentitle it to the extent of the proper measure of damages where gooils sul liability to demand and recover freight: are injured in transit, by the negligence of the and if the la mage should exceed the amount carrier.

of the freight to which it would otherwise be In argument the plaintiff in error objects entitled, of course, it would not be entitled to the rule stated by this court because of to demand and recover anything for the carthe embarrassments which may be imposed riage of the property. And in such cases upon carriers big dissatisfied shippers. But, the owni'r or consignee may maintain ri

1 the rule contended for by it would. in our plevin without a tender, and the claim for view, enable (arriers to impose inuch great- . freight ly the defendant, and the claim for er embarrassment upon shippers. A rule damage lif the plaintiff, at least to the exwhich would require a shipper to pay his tent of the freight charge, may be adjudicatdebt to a carrier, who owes him a greater ed in the implevin suit." The case of Bansum, does not seem to be a just and fair way (loft v. Peters, 4 Mich. 01!), is to the same to settle a controversy. It is concelleil by rfreet. In the case of Marsh v. Union Pac. the plaintiff in error that in an action by the Ry. ('o. ( c.) 9 Fel. 973, Judge Hallett af (arrier for the freight, after the goods have the United States District Court for Colobeen delivered to the consignee, damages to rado, held that trover would lie for the value the goods might be collected, and that re of freight held by a carrier under a lien plevin would lie against the carrier for the which did not exist. In 1 Jones on Liens 2 goods without payment of freight if the dam Ed.) $ 331, it is said: “The carrier's lien may ages equaled or exceeded the freight bill; be defeated by an injury to the goods carried but it insists that a suit for the value of an happening by the carrier's fault to an amount entire shipment will only lie when there has larger than his charge for freight. His right been a conversion, which has not been shown to freight and to detain the goods for its payhere. On the other hand, the defendant in ment results from his performance of the error claims that both reason and authority. | contract to carry the goods. If he fails to sustain the law as stated in the syllabus, ob carry the goods and have them ready for

87 P.-6

delivery, he cannot claim his freight.” 8 Am. after setting aside a judgment in favor of & Eng. Enc. of Law (1st Ed.) 978, $ 6. The plaintiff, he appeals. Affirmed. proposition seems reasonable that, when a See 83 Pac. 272. carrier's lien is gone, subsequent retention of

Cole & Cole, for appellant. 0. B. Carter, possession of freight against the wish of the

for respondents. owner is wrongful, and the owner inay thereafter sue for the possession thereof in repley

ANGELLOTTI, J. Plaintiff instituted in, or for the value as upon conversion. We

this action to quiet his title as to various understand the general rule to be that a re

lots of land in the city of Los Angeles,

against many defendants, including R. P. property upon demand by the owner, who

Mudge. As to most of said defendants, inhas the right to possession, amounts to a

cluding Mudge, the only attempted service conversion, and the owner may sue for the

of summons was by publication. As to said value at once. 28 Am. & Eng. Enc. of Law

defendants, they not having appeared, de(2d Id.) 705; Roberts v. Yarboro, 41 Tex.

fault was entered on October 3, 1902, and 449; Briggs v. Haycock, 63 Cal. 313; Trans

judgment was rendered on said default in portation Co. v. Sellick, 52. III. 249; Singer favor of plaintiff and against said defendants Mfg. Co. v. King, 14 R. I. 514.

on December 23, 1902. On July 3, 1903, the We conclude that the rule stated in the syl

trial court made an order granting a motion labus is more in harmony with modern pro

of defendant Mudge to set aside a judgment cedure, and more in consonance with fairness

as to him, and allowed him to answer to the between the parties, and less liable to lead

merits of the original action, which he did on to embarrassinents, than the rule contended

the same day, disclaiming any interest in for by the plaintiff in error, and therefore do

the land described in the complaint, except not feel inclined to make any change therein.

one lot, as to which one lot he denied plainAll the Justices concurring.

tiff's claim of ownership and alleged title in himself. On the issues thus made, the

was tried as between the plaintiff (149 Cal. 6591

and Mudge, and the trial court found in FOX v. TOWNSEND et al. (L. A. 1,471.)

favor of Mudge, and gave judgment in his (Supreme Court of California. Aug. 30, 1906.) favor as to said lot. Plaintiff appeals from 1. APPEAL REVIEW-GROUNDS OF ACTION OF

the order of July 3, 1903, setting aside the COURT BELOW-PRESUMP'TIONS.

original judgment against Mudge, and also The statement in the brief of appellant as from the judgment finally entered in favor to the ground on which a motion to set aside a judgment was granted is no part of the record ;

of Mudge, his only contention being, howand in the absence of any other showing in the ever, as to the order setting aside the origirecord of the grounds for the action of the trial nal judgment. If that order was correctly court, if there is any ground consistent with the record on which such action may be sustained,

made, there is no error shown by the record the court will sustain it.

as to the subsequent proceedings. (Ed. Note.---For cases in point, see vol. 3, The record on appeal consists solely of Cent. Dig. Appeal and Error, $ 3667.]

the judgment roll and the order setting 2. JUDGMENT SETTING SIDE DEFAULT aside the original judgment, there being no GROUNDS -- STATUTES-CONSTRUCTION.

bill of exceptions. The record does not disCode Civ. Proc. § 473, providing that, when a summons has not been personally served, the

close the ground upon which the motion court may allow defendant, within one year af to set aside the judgment was based, or ter the rendition of any judgment, to answer to upon which the lower court acted, showing the merits, authorizes the court, on a proper showing and in the exercise of a sound discre.

simply that a motion of Mudge to set aside tion, to set aside a judgment as against a defend the judgment was granted, and Mudge alant not personally served and allow him to an lowed to answer to the merits. Appellant, swer to the merits, though the proceedings by

in his brief, states that the ground upon publication are regular and the judgment is valid on its face.

which the original judgment was set aside [Ed. Note.--For cases in point, see vol. 30, as to Mudge was that it was void for the Cont. Dig. Judgment, 88 251, 233, 265.]

reason that the court had not acquired juris3. APPEAL-PRESUMPTIONS.

diction as to him on account of the insuffiIn the absence of a showing to the contrary, ciency of the affidavit for the publication of the court on appeal will assume that a sufficient showing was made to warrant the court in set

summons in its allegations as to his resiting aside a judgment rendered against a de dence out of the state. He then attempts jendant not personally served.

to show that the affidavit was legally suffi[Ed. Note.--For cases in point, see vol. 3,

cient in this respect to support the order Cent. Dig. Appeal and Error, SS 3784, 3785.]

for publication of summons, and hence that Department 1. Appeal from Superior the judgment based thereon was not void Court, Los Angeles County; M. T. Allen, upon its face. While we are inclined to the Judge.

opinion that the affidavit was insufficient to Action by Edwin R. Fox against W. H. | support an affidavit for publication as to Townsend and others. From a judgment Mudge, and that the publication was, as to in favor of defendant, R. P. Mudge, rendered him, ineffectual to confer jurisdiction, it

is not necessary to here determine that 2. SAME-PERIOD OF LIMITATION MISTAKE question. The statement in the brief as to

AS GROUND FOR RELIEF.

In a suit for a decree adjudging a mortgage the ground upon which the motion was

executed by a guardian to be a valid lien on the granted constitutes, of course, no part of the interest of the wards in the property covered record. On appeal every presumption is

thereby, and directing a sale thereof to pay the

note for which the mortgage was given, the comin favor of the action of the lower court, and

plaint alleged that the property was devised to if there be any ground consistent with the wards; that the testator had incumbered a the record upon which that action may be

part thereof with a mortgage which, subsequent sustained, we are bound to sustain it.

to his death, was foreclosed; that the sum bor

rowed, for which the note and mortgage were As will be noted from what has already given, was used to redeem; that the money was been said, the motion to set aside the judg borrowed by the guardian without any order of ment was granted within a year after the

the court; that the guardian represented that he rendition of the judgment. Section 473,

had authority to execute the note and mortgage;

that it was the intention of the guardian and Code of Civil Procedure, provides: “When the mortgagee that the latter should have a from any cause the summons in an action valid lien ; that the guardian and mortgagee be

lieved that the mortgage was valid, and that has not been personally served on the de

their mistake was not discovered until within fendant, the court may allow, on such terms

three years prior to the commencement of the as may be just, such defendant or his legal action. Ield, that the action was within section representative, at any time within one year

337, providing that an action on a contract in

writing is barred unless commenced within four after the rendition of any judgment in such

years after the accrual of the cause of action, action, to answer to the merits of the origi and not within section 338, subd. 4, allowing an nal action.” Mudge not having been person

action for relief for mistake to be commenced ally served with summons, the superior court

within 3 years after the discovery of the mistake. had the power, under this provision, upon

[Ed. Note.-For cases in point, see vol. 33,

Cent. Dig. Limitation of Actions, $ 475.] a proper showing and in the exercise of a sound discretion, to set aside the judgment Lassen County; F. A. Kelley, Judge.

In Bank. Appeal from Superior Court, as to him and allow him to answer to the

Action by James 0. Banks against. Annie merits at any time within one year after the rendition of the original judgment against ton, and others. From a judgment for plain

E. Stockton, as guardian of Dorsey K. Stockhim, even though the proceedings by pub

tiff, defendants appeal. Reversed. lication were entirely regular, and the judgment, therefore, valid on its face. This was

Garoutte & Goodwin, for appellants. N. exactly what the lower court did in this J. Barry, for respondent. case. Whether or not the circumstances

ANGELLOTTI, J. This action was comshown to the court on the hearing of this motion were such as to justify the

menced December 8, 1899, to obtain a decree

adjudging a mortgage, executed by Annie making of the order is a question that we

E. Stockton as guardian of the person and cannot determine in the absence of a record

estates of Dorsey K., Dexter C., H. C., and showing the facts presented to that court. In the absence of a showing to the contrary,

Pitt D. Stockton, who then, and until the

year 1894, were minors, to be a valid lien we must here assume that a sufficient show

upon the interest of said minors in the proping was made to warrant that court in ex

erty described therein, and directing the ercising the power conferred by section 473,

sale of said property to pay the amount due Code of Civil Procedure. There is, there

on the note for which the mortgage was fore, no warrant for reversing the order setting aside the original judgment as to

given as security. The mortgage was ex

ecuted by said guardian on November 26. Mudge. The judgment and order appealed from

1890, to secure a note of said guardian of

the same date for the sum of $1,000, and are affirmed.

bearing interest at the rate of 10 per cent. We concur: SHAW, J.; SLOSS, J.

per annum, and payable two years after its

date. A demurrer interposed to the com(149 Cal. 599)

plaint was overruled, and, an answer having BANKS V. STOCKTON et al. (Sac. 1,222.) been filed, the cause was tried and judg(Supreme Court of California. Aug. 23, 1906.)

ment given for plaintiff as prayed. This 1. LIMITATION OF ACTIONS-MORTGAGES-EN

is an appeal by defendants from such judgFORCEMENT.

ment. A suit for a decree adjudging a mortgage One of the grounds specified in the demurexecuted by a guardian to be a valid lien on the

rur to the complaint was that the cause of interest of the wards in the property covered by the mortgage, and directing a sale of the

action stated, if one was stated, was barred premises to pay the note for which the mort by the provisions of section 337 of the gage was given, brought more than 7 years after

Code of Civil Procedure of the state of Calthe accrual of the cause of action thereon, is barred by Code Civ. Proc. $ 337, providing that

ifornia, which provides that an action upon an action on a contract founded on an instru a contract founded upon an instrument in ment in writing is barred unless commenced writing executed in this state is barred unwithin four years after the accrual of the cause

less commenced within four years after the of action. [Ed. Note. For cases in point, see vol. 33,

cause of action accrues. We can see no posCent. Dig. Limitation of Actions, & 127.] sible answer to the objection thus made.

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