Kan.) ELWOOD v. FIRST XAT. the rest of the case, to the higher court. some of the Whenever a final judgment or final order is favored to the streams of the state of Kansas, and run- rendered or made in a justice's court, even ers not favored if rendered or made only in a garnishment appointed in proceeding, the case may be taken on peti- has been made Fon in error to the district court. Carlyle Smith, 36 Kan. 614, 14 Pac. Rep. 156. le attachment or garnishment proceed ad generally, as to taking cases which in- county; E. HUTCHINS = on petition in error from a justice of Bland, for plaintiffs Deace to the district court, see the follow- and Rossington, Smith & among other cases: Fitch v. Insurance 23 Kan. 366; Warner v. Bucher, 24 178; Seymour v. Cooper, 26 Kan. 539; ns v. Muthersbaugh, 29 Kan. 730; in the district court of Washing . Wiss, 34 Kan. 553, 9 Pac. Rep, George S. Elwood against the ow, if the defendants in error in Bank of Greenleaf, in said coun had a right, or would have had a purpose of having a receiver appoin id bond had not been given, in any charge of the affairs of the bank. To keep alive or preserve their gar- other purposes. The action was proceedings so as to make them ef- on October 18, 1888, by filiis mand for ng of this case" in the court in lly be rendered in their favor "on and also by filing at, upon the commenced ase might eventually be on such On the sari of the grand juga petition, then there was certain titled "An act authoriz- acted as a meth of the plaintiff, and having ng," as they undoubtedly had the and if they gave up this right, -ubtedly did, for no other reagled. the giving of the bond eration for the gent of a commissioner of fish-ified to act ey re5, p. 457,) is sufficiently broad, within the pro- elinquis 'sess. Laws 1877; chapter 42b, Comp. Laws he summons issued in the case. tions 4 and 5 of the act are not violative ofse by the probate judge of the county. ated by the defendant is in Sumner coron ment of the receiver was served only upon 3. The indictment returned and filed in The notice of the application for the appoint and filed in the distridefendants in er- the reason that they were all absent from the On February 22, 1888y be construed. cashier, or other chief officer of the bank for county the following and as a considera- county. The president, who was also the ary term of said ched their garnishment general manager of the bank, was absent rors of the grand inquished the same for- from the state. The service of the summons sitting within an reserving to themselves was not made until the next day, to-wit, Ocagainst the laver revive or resuscitate the J. C. Smith, the president of the bank, who 1888, the defendant answered. On Novem- Is subject further. The motion for the of his duties as receiver. On November 17, line, iELWOOD v. FIRST NAT. BANK OF GREEN- the district court at chambers to set aside the order appointing the receiver, and to dis- 1. Where the record of a case shows that a re- npointing a provisional the sman of page 860 should be changed to "42," and would want to take his case for review to the words "judgment had" in the sixteenth some higher court. But after attachment line from the top of page 861 should be and garnishment proceedings have been dischanged to "hearing had."1 A motion for a charged under the provisions of sections 45 rehearing is now presented. It is still in- and 46 of the justice's act, or sections 220 sisted by counsel for the plaintiff in error and 221 of the Civil Code, and by virtue of a that the judgment mentioned in the bond, judgment for the defendant, would not the which was to be rendered "on final hearing granting of a new trial upon a motion thereof this case," was a judgment to be ren- for in the justice's court, when the judgment dered by the justice of the peace only, and is rendered in that court, or in the district not a judgment to be rendered "on final hear-court when the judgment is rendered in the ing of this case," in whatever court the case district court, revive all such proceedings? might be when the "final hearing" of the Or would not the granting of a new trial by case should be had. We have probably al- a higher court,-for instance, by the district ready said all that is necessary to be said in court when the judgment was rendered by a the case, but, as counsel for plaintiff in error justice of the peace, or by the supreme court strenuously urge some points not covered by when the judgment was rendered by the disthe opinion heretofore delivered, we shall add trict court, upon proceedings in error from a few words. Counsel for plaintiff in error the lower court to the higher court, and the now strenuously urge that if no bond had remanding of the case back to the lower been given in this case, then that the at- court for the new trial,-revive all such protachment and garnishment proceedings pend- ceedings? Or even where a case is taken ing in the case at the time the judgment of from a justice's court on petition in error to the justice of the peace was rendered would the district court, and the district court rehave necessarily and finally and forever been verses the judgment of the justice of the discharged, vacated, annulled, and ended by peace, and then retains the case for the new such judgment; and therefore he claims that trial in the district court, would not such acthere was no sufficient consideration to up- tion on the part of the district court revive hold the bond, if it should be construed as all the proceedings in attachment and garcontinuing in force, so as to operate as a se- nishment? And surely new trials may be curity for any judgment except the one ren- granted by a justice of the peace as well as dered or to be rendered by the justice of the by the district court, and cases may be taken peace. There is no statute, however, and no on petition in error from a justice of the decision, that sustains this claim of the plain- peace to the district court, as well as from the tiff in error, and we think it is wholly un- district court to the supreme court. See the tenable. It is true that in all cases where a following statutes: judgment is rendered in favor of the defend- "Sec. 110. The justice before whom a cause ant, either in a justice's court or in the dis- has been tried, on motion of the party agtrict court, all attachment and garnishment grieved, at any time within five days after the proceedings then pending in the case will, by decision or verdict, shall vacate the decision reason of the judgment, be discharged. Jus- or verdict and grant a new trial for the same tice's Code, §§ 45, 46; Civil Code, §§ 220, 221. reasons, and upon the same terms and conIn this respect the rule of law in the two ditions, as provided in the Code of Civil Procourts is precisely the same. But this dis- cedure in like causes; and he shall set a time charge of the attachment and garnishment for a new trial, of which the opposite party proceedings is only provisional or condition- shall have at least three days' notice." Jusal, depending for its finality wholly and en- tice's Act, § 110, as amended in 1885. See, tirely upon whether the judgment itself shall also, Justice's Act. § 114; Civil Code, §§ 306, be permitted to stand as a finality, or shall 568, relating to new trials. Also the followsubsequently be set aside or vacated as upon ing: "Sec. 540. A judgment rendered, or an order in the same court granting a new final order made, by a justice of the peace, trial, or by a judgment of reversal rendered or any other tribunal, board, or officer exerin some higher court upon a petition in er- cising judicial functions, and inferior in juror, or by some other proceeding. The afore- risdiction to the district court, may be resaid sections of the justice's act, and of the versed, vacated, or modified by the district Civil Code, apply so as to discharge the attach-court. Civil Code, § 540. "Sec. 13. Bills ment and garnishment proceedings pending of exception may be made, signed, and sealed in the case only where the judgment of the in any case tried before a justice of the court is rendered wholly in favor of the de- peace, whether the action be tried by a jury fendant, and wholly against the plaintiff, or by the justice." Comp. Laws 1885, p. 713, and do not apply where the judgment is ren- par. 4668. And when a case is taken on pedered in favor of the plaintiff, even if ren- tition in error from a justice of the peace dered only for the smallest fraction of his to the district court, of course everything claim, and yet, in either of these cases it which is existing or pending in the case at would be the plaintiff, and not the defend- the time when the judgment or order comant, who would wish to preserve the attach-plained of was rendered or made which af ment and garnishment proceedings, and who fects such judgment or order, or which is in 'Caused by error in copy furnished. volved in, or is affected by, the same, may be taken by the petition in error, along with the rest of the case, to the higher court. Whenever a final judgment or final order is rendered or made in a justice's court, even if rendered or made only in a garnishment proceeding, the case may be taken on petition in error to the district court. Carlyle v. Smith, 36 Kan. 614, 14 Pac. Rep. 156. And generally, as to taking cases which include attachment or garnishment proceedings on petition in error from a justice of the peace to the district court, see the following, among other cases: Fitch v. Insurance Co., 23 Kan. 366; Warner v. Bucher, 24 Kan. 478; Seymour v. Cooper, 26 Kan. 539; Williams v. Muthersbaugh, 29 Kan. 730; Clark v. Wiss, 34 Kan. 553, 9 Pac. Rep, 281. Now, if the defendants in error in this case had a right, or would have had a right if said bond had not been given, in any manner to keep alive or preserve their garnishment proceedings so as to make them effective in satisfying the judgment which might finally be rendered in their favor "on final hearing of this case" in the court in which the case might eventually be on such "final hearing," as they undoubtedly had such right, and if they gave up this right, as they undoubtedly did, for no other reason than merely the giving of the bond sued on in this case, then there was certainly a sufficient consideration for the giving of the bond, in whatever way it may be construed. When the plaintiffs below (defendants in error) accepted said bond, and as a consideration therefor relinquished their garnishment proceedings, they relinquished the same forever, and without reserving to themselves any right or power in any form or in any manner to ever revive or resuscitate the same, or to bring them into being again. This right which they relinquished was a valuable right. But it is unnecessary to pursue this subject further. The motion for the rehearing will be overruled. (41 Kan. 475) some of the creditors and stockholders are being favored to the injury of others, a receiver may be appointed at the instance of one of the stockholders not favored, and a provisional receiver may be appointed in such a case, even where the bank only has been made a defendant. (Syllabus by the Court.) Error from district court, Washington county; E. HUTCHINSON, Judge. Waggener, Martin & Orr, and Frame & Bland, for plaintiff in error. J. G. Lowe and Rossington, Smith & Dallas, for defendant in error. VALENTINE, J. This was an action brought in the district court of Washington county by George S. Elwood against the First National Bank of Greenleaf, in said county, for the purpose of having a receiver appointed to take charge of the affairs of the bank, and for other purposes. The action was commenced on October 18, 1888, by filing a petition, properly verified by the oath of the plaintiff, and also by filing a præcipe for a summons, and having a summons issued in the case. On the same day a receiver was appointed in the case by the probate judge of the county. The notice of the application for the appointment of the receiver was served only upon one of the directors of the bank. The sheriff stated in his return of the notice that he could not serve the same upon the president, cashier, or other chief officer of the bank for the reason that they were all absent from the county. The president, who was also the general manager of the bank, was absent from the state. The service of the summons was not made until the next day, to-wit, October 19, 1888. It was then served upon T. J. C. Smith, the president of the bank, who had then returned to the county. On the same day the receiver filed his bond, took the oath of office and entered upon the discharge of his duties as receiver. On November 17, 1888, the defendant answered. On November 21, 1888, after giving proper notice, the defendant presented a motion to the judge of ELWOOD v. FIRST NAT. BANK OF GREEN- the district court at chambers to set aside the LEAF. (Supreme Court of Kansas. May 10, 1889.) RECEIVERS NATIONAL BANKS. 1. Where the record of a case shows that a receiver was appointed on the same day on which the action was commenced, it will be presumed that each was done in its proper order. 2. A receiver may be appointed without notice to the adverse party, though generally such a thing should not be done. 3. For the purpose of appointing a provisional receiver it is not necessary that all the grounds therefor should be set forth in detail in the plaintiff's petition. It is necessary, however, that the action should be one in which a provisional receiver may be appointed. 4. Before a receiver can properly be appointed, it is necessary that the plaintiff should have a probable cause of action against the defendant, and that the benefit to be derived from such cause of action might be lost or substantially impaired if the receiver were not appointed; but all this was shown in the present case. 5. Where a national bank is insolvent, and in process of voluntary liquidation, and its affairs are being greatly mismanaged by its managing agents, to the injury of its creditors and stockholders, and v.21p.no.11-43 order appointing the receiver, and to discharge the receiver, and for an order that the property in the hands of the receiver should be returned to the defendant; and the judge sustained the motion and ordered accordingly. This order was filed in the case on November 22, 1888; and to reverse this order the plaintiff below, as plaintiff in error, brings the case to this court. The defendant in this case was and is a national bank under the laws of the United States, and the plaintiff was and is a stockholder therein. At the time of the commencement of this action the bank, by the consent of all the officers, was in process of voluntary liquidation, and T. J. C. Smith, the president, had the charge and management thereof. It is also alleged by the plaintiff that the bank through the gross mismanagement of its officers had become insolvent, and that its officers and managing agents were then fraudulently squandering its assets, and that, unless relief were immediately He granted great and irreparable injury would] tion against the defendant, and that the benensue to the stockholders, among which was efit to be derived from such cause of action the plaintiff. The main and principal object of the action was to obtain the appointment of a receiver to take charge of the affairs of the bank until its affairs could be finally settled; but the plaintiff also asked for and obtained the appointment of a provisional or temporary receiver to take charge of the affairs of the bank pendente lite. The order appointing this provisional receiver was afterwards set aside by the order of the judge of the district court at chambers, and the receiver discharged; and of this order of the judge of the district court, and of this order alone, the plaintiff in error now complains. It would seem at first view that the order appointing the receiver was right, and that it should have been permitted to stand; but the defendant claims otherwise, and urges many objections to the order, and gives many reasons why a receiver should not have been and should not be appointed in the case. We shall consider these objections and reasons in their order. might be lost or substantially impaired if a receiver were not appointed. This is certainly true, but it would seem to us that the plaintiff showed all this, both before the probate judge and before the judge of the district court. He certainly owned one share of stock, although it did not appear on the records of the bank to be in his name. also had been the owner of 10 other shares of stock which then appeared, and still appear, from the records of the bank to be in his name, and these 10 shares of stock do not in fact belong to any other individual stockholder. They belong, either to the plaintiff, and are deposited with the bank as collateral security, or they belong to the bank, and it is not certain which, but in either case the plaintiff has an interest in them, as will hereafter be seen. purchased for the purpose, among other things, of enabling the plaintiff to commence this action. If this one share of stock, purchased as it was, were his only interest to be protected, it is probable that he should not be permitted to maintain this action. But it would seem that he must also be liable to the creditors of the bank to the amount of the 10 shares of stock, and, taking his entire interest in the 10 shares of stock above mentioned and his liability to the creditors thereon, it would seen as though this ought to be sufficient, with the other facts of the case to 2. It is further claimed that the appoint- permit him to maintain the action. The ment of the receiver was ex parte, and with- bank, also, in all probatity is hopelessly in 1. It is claimed that the receiver was appointed before any action was commenced in the district court. This does not so appear from the record. It appears from the record that both these things took place on the same day, and presumably in their proper order. But as all were done on the same day, could it make any difference which parts of the same were attended to first? The one share of stock was will eventually, ets of the bank, the plaintiff, out notice to the defendant. This, in legal solvent, and the creditor contemplation, is true, for the notice that after exhausting all the asset was actually served upon one of the directors sue the stockholders, including of the bank cannot be considered as a notice for the remainder due them. defect of to the bank. It would seem, however, from 5. It is claimed that there is the "ofthe return of the sheriff that the notice could parties defendant for the reason that holders not at that time be served upon the defend-ficers of the defendant and the stock arties ant, for the reason that all its officers upon therein are not, and were not, made pathis whom the notice could be served were absent to this action." We do not think that, from the county. And besides, a receiver may be appointed without notice, although generally such a thing should not be done. But the question is immaterial now, as the entire question with regard to the necessity or want of necessity for a receiver, or the propriety or impropriety in having one, has been heard before the judge of the district court, and both sides have had an ample opportunity of being heard and of presenting all that either party desired to present. 3. For the purpose of appointing a provisional receiver it is not necessary that all the grounds therefor should be set forth in detail in the plaintiff's petition, as the appointment of such a receiver is only an ancillary remedy. Hottenstein v. Conrad, 9 Kan. 435. It is necessary, however, that the action should be one in which a provisional receiver may be appointed. But this is one of such actions. 4. It is also claimed that before a receiver can be appointed it is necessary that the plaintiff should have a probable cause of ac is material at the present time. Beac Rec. §§ 131-133. It may be that before th final hearing of the case upon the petition i had all necessary or proper parties should be brought in; and it would of course, even upon an interlocutory application for the appointment of a provisional receiver, such as this application is, be better to bring in all proper parties, but such a thing is not a prerequisite. The principal party defendant, the bank, a largely representative party, has been brought in; and it has had an opportunity to be heard upor these interlocutory matters concerning the appointment and the retention or discharge of the provisional receiver. It is unnecessary to go further into the facts or into the merits of this case. It is clear that the affairs of the bank in the present case should be in the hands of a receiver. The bank is clearly insolvent. Its affairs have been very badly mismanaged. Some of its creditors have been secured by its managing officers and agents to the injury of other creditors. Absolute deeds of conveyance for the property of the bank have the streams of the state of Kansas, and runbeen executed where at most only mortgages should have been executed, and probably not even mortgages. And some of the books of the bank have been sent beyond the jurisdiction of the court, and out of the state, and placed in the hands of the attorneys of the favored creditors and stockholders. Exact justice can be done only by a receiver who will not favor one creditor or stockholder more than another. The order of the judge of the court below will be reversed, and the receiver appointed by the probate judge will be permitted to retain the position. ning through and across the county of Sumner. Said dam, so owned and operated as aforesaid by the said Henry Stunkle across the waters of the said Ninescah river, was not on the 14th day of February, A. D. 1888, or at any other time between said date and the year 1886, provided with any kind or character of fishway by means of which the fish in said stream were enabled to pass through or over it, and the said Henry Stunkle has owned and operated said dam from the year 1886 up to the 14th day of February, A. D. 1888, and has unlawfully obstructed the said Ninescah river by means of said JOHNSTON, J., concurring. HORTON, C. dam, and has failed to construct or provide J., not sitting. (41 Kan. 456) STATE v. STUNKLE. (Supreme Court of Kansas. May 10, 1889.) GRAND JURY-EXEMPTIONS-FISHERIES. 1. The exemption of an elector from service upon a jury is not a disqualification, but a personal privilege which he may waive, and, if he does so, parties have no ground of complaint. Held, therefore, that an indictment will not be quashed, because one of the grand jurors finding it was a member of the board of county commissioners of the county where the court was held in which the indictment was returned and filed. constitution. 3. The indictment returned and filed in this case sufficiently charges that the dam owned and operated by the defendant is in Sumner county, where the defendant was indicted, tried, and convicted. (Syllabus by the Court.) a fishway that will permit all kinds of fish in said Ninescah river to pass up the said stream, and that it is not the opinion of the fish commissioner of the state of Kansas that said dam will permit the passage of fish,contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Kansas. J. L. GRIDER, County Attorney." On the 1st day of May, 1888, the defendant, Henry Stunkle, having been arrested, appeared in court and filed his motion to quash the indictment, upon the ground that the foreman of the grand jury which returned the indictment, Mr. J. M. Reitz, was, at the time he 2. The title of the act entitled "An act authoriz- acted as a member of the grand jury, disqualing the appointment of a commissioner of fish-ified to act as a juror, being at the time one eries, and for the protection of fish in the waters of the elected, qualified, and acting_county of the state of Kansas, and making an appropriation for the salary of the commissioner, " (chapter commissioners of Sumner county. Upon a 117, Sess. Laws 1877; chapter 42b, Comp. Laws hearing thereof, this motion to quash was 1885, p. 457,) is sufficiently broad, within the pro- overruled, the defendant excepting. Therevisions of the constitution of the state, and sections 4 and 5 of the act are not violative of the upon the defendant filed another motion to quash the indictment, upon the groundsFirst, that the act under which the indictment was found is unconstitutional and void; second, that the indictment did not state facts sufficient to state or charge any public offense against the defendant; and, third, that the indictment upon its face showed that the court had not jurisdiction of the alOn February 22, 1888, there was returned leged offense charged therein. This motion, and filed in the district court of Sumner also, upon a hearing thereof, was overruled, county the following indictment, omitting the defendant excepting. On the 2d day of caption and indorsements: "At the Febru- May, 1888, the case came on regularly for ary term of said court, A. D. 1888, the ju- trial upon its merits. The defendant pleaded rors of the grand jury of the state of Kansas, not guilty, and a jury was impaneled, which, sitting within and for said county, duly im- after hearing the evidence, the instructions paneled, swoin, and charged to inquire and of the court, and the arguments, returned a true presentment make of all public offenses verdict finding "the defendant guilty as against the laws of the state of Kansas cog-charged in the indictment." The defendant nizable by said court, committed or triable filed a motion for a new trial, containing the within said county, on their oaths do find usual statutory grounds, and also filed a moand present that on the 14th day of February, tion in arrest of judgment, containing the A. D. 1888, and at all times and dates since the year A. D. 1888, one Henry Stunkle had been the owner and operator of a certain milldam across the Ninescah river, about two miles south of the Sedgwick county, Kansas, line, in London township, and at what is commonly called Stunkle's mill, said mill being situated in the county of Sumner and state of Kansas, said dam being constructed across said Ninescah river, the same being one of Appeal from district court, Sumner county; J. T. HERRICK, Judge. various statutory grounds. These motions were overruled by the court, the defendant excepting. The court sentenced the defendant to pay a fine of $100, and all the costs of the prosecution, and to be committed to the county jail of Sumner county until the judgment was fully satisfied. To the sentence and judgment the defendant excepted. The defendant appeals to this court. James Lawrence, for appellant. L. B. |