fendants to be the owners of the lands in question, and ordered the plaintiff to be ejected therefrom. The plaintiff contends that in any event the defendants were entitled to no affirmative relief, and in particular that the order of ejectment was unauthor for it. As the case was submitted to the jury, the verdict is fairly to be regarded as including a finding that the land was formed by accretion to the south bank, and therefore belongs to the defendants. The language of the act of 1913 already quoted-that "the issues of fact and of law, and all claims of the respective parties to such lands, shall be fully tried and determined as in other civil cases"-indicates a purpose to have all controversies between the parties with respect to the land threshed out and disposed of in the proceeding there provided for. The statute in a sense protects a settler in entering and occupying a portion of a tract which may in fact be the lawful property of anoth channel of the river and carry it over to the north bank. The context, however, seems to indicate that in some cases the word "channel" was used as the equivalent of "current," and that changes in the channel were spoken of, without any intention of referring to an actual change in the river bed. No instruc-ized, because the statute makes no provision tion was given specifically with regard to avulsion, and none was asked. But the jury were told that, for the defendants to have acquired title by accretion or reliction, the change must have been gradual and imperceptible. We think the evidence justified a submission to the jury of the question whether title was so acquired, and a finding thereon in favor of the defendants. The witnesses differed greatly, not only in recollection, but in expression. One of them, whose residence dated back to 1878, said that since that date there had been no channel, in the ordinary stage of the river, east of the bridge (the bridge runs north and south); that the channel ran along about the center; that the first year there was no channel at all-er occupant; it creates a procedure by which no water, except during a freshet. Another said that the tract washed in and filled up to the bank first; that "when this approach to the bridge was built it stopped the flow of the water materially; that is, it didn't flow so fast, and the water naturally would settle along the south bank of the river and fill it up"; that the land "was formed by the settling of muddy water after it passed the approach to the bridge; the water naturally flows slower east of that approach, and the sediment of the river would naturally settle there"; that "it settled along the south bank of the river, from the south bank out"; that "when there was any water in the river it was there" (referring to the south side of the river east of the bridge); that there was no channel on the south side separated from the main river (implying that there was as a part of the main river). Another testified that the water went clear to the old (south) bank; that the land was "filled up against the bank out into the river"; that the dam "threw all the current of the water to the north side." Another said that "the river gradually filled in on the south side and floated away from them" (the defendants' lands). A witness for the plaintiff testified that the dam drove the stream towards the north, and afterwards the south channel became filled up. When asked whether the Adams tract grew up in the bed of the river, or from the south bank, he answered that it grew from the south side. The plaintiff's present theory does not square with evidence given in his behalf that after the dam was built there was a stream 40 feet wide between the south bank and the alleged island on which settlement was made, and that the island grew to the south bank. [5] 5. The judgment not only denied the plaintiff's claim, but also declared the de the rights of all parties after such settlement may be speedily litigated. The settlement is really the first step in a proceeding to determine the character of the land, and for that reason is given qualified protection. An adjudication that the land is not open to settlement determines that the plaintiff has no right of possession, and it would be out of harmony with the spirit of the law to allow him to retain it until another judgment should be obtained against him in some other form of action. The judgment is affirmed. All the Justices concurring. LINDERHOLM v. KANSAS CONFERENCE Feb. 12, 1916.) (Syllabus by the Court.) church council of Bethany Lutheran Church at For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes law quoted forbids further action by the confer- | again have attempted to bring about a reconcilience after it has decided an appeal. [Ed. Note.-For other cases, see Religious Societies, Cent. Dig. §§ 199-207; Dec. Dig. 31.] Appeal from District Court, McPherson County. Action by Justus B. Linderholm against the Kansas Conference of the Swedish Evangelical Lutheran Augustana Synod in North America. From judgment for defendant, plaintiff appeals. Affirmed. John F. Hanson, of Lindsborg, for appellant. Grattan & Grattan, of McPherson, for appellee. BURCH, J. The action is one for damages for the refusal of a church conference to hear a motion for a new trial. A demurrer was sustained to the plaintiff's evidence, and he appeals. Linderholm was a member of the congregation of Bethany Lutheran Church, an unincorporated religious society at Lindsborg. The by-laws of the church contained the following provisions: "Should the warning be without any effect as to the one called, the church council shall suspend or excommunicate according to the word of God. The person excommunicated loses then all his rights to any part in the congregation's real or personal property. If the member is not satisfied with the church council's decision concerning himself, he may appeal to the conference on the condition that he, within a week, gives notice to the church council after he has received notice of the decision, and states his reason and grounds for his appeal. The decision of the conference in the matter shall in all events be final." Charges were preferred against Linderholm and he was excommunicated. He appealed to the conference, a voluntary association of Lutheran Churches. The conference sustained the action of the church, as appears by the following transcript of its proceedings. "Conference Minutes 1904. Mr. J. B. Linderholm had appealed to the conference from the decision of the church council of Bethany congregation at Lindsborg. "The conference elected a committee to take this appeal into consideration and to go through the documents and as a result thereof to lay resolutions before the conference. As members of this committee were elected Rev. S. E. Glad, and C. A. Henry and Mr. Gust Burk. "At the sixth session this committee rendered the following report: "The committee elected to consider the appeal sent to the conference by J. B. Linderholm, reports as follows: ation with him. "Decided that whereas, the conference already decided this matter or case these writings cannot be given or lead to any further consideration on the part of the conference." This action of the conference is the foundation of the plaintiff's claim for damages, the specific allegation of the petition being: "That plaintiff by the refusal of said conference to sit and hear said motion for new trial as aforesaid has been damaged in the sum of $5,000." The record of the proceedings in the district court contains no statement by the court respecting the defect or defects in the plaintiff's proof, and failure to establish any material allegation of the petition is fatal to recovery. Conceding, but not deciding, that damages might have been awarded for a departure from orderly church procedure, there is no proof that the conference was guilty of such conduct. There was evidence that the Lindsborg Church sprung from the Swedish Lutheran Church in Sweden, that "there is a tendency to follow that and get precedents from that when it can reasonably be adopted," but that trial procedure depends in this country on custom and usage, and it is customary to proceed in some reasonable way. What the usages and customs of the Lutheran Church in this country or in any other country may formerly have been or may now be, respecting new trials by conferences after decisions of appeals from church councils, was not shown. The plaintiff offered in evidence a provision of the church law of Sweden which states that "in other matters of practice the cause shall proceed on appeal the same as in the secular courts." The offer was rejected, but the evidence will be treated as if it had been admitted. The secular courts referred to are the courts of Sweden. There was no proof or offer of proof that new trials are a part of the procedure in those courts, and it is impossible to declare or to infer that the provision offered in evidence related in any way to the subject of new trial. Beyond this, the testimony went no further than that there is a "tendency" to follow Swedish precedents. How far this tendency prevails, and how far it has been superseded by modern American customs, does not appear, and, so far as the proof discloses, a new trial after a conference decision on appeal may be quite contrary to such customs. The attorney for the plaintiff, testifying, "(c) That in his appeal he admits his irresponsibility for 'coarseness and peculiarities' with not as an expert in church law and custom, "(a) It appears that said Linderholm has on account of unkind judgments and threats been refused admittance to the Lord's Supper, and that after continued obstinacy and unbecoming conduct during divine service has been excommunicated by the church council; "(b) That although Linderholm has in writing bound himself to desist from strife he neverthe less has continued as before in publications, in word and action; duly adopted, has no lodgement in this state. In so far as a church society has not prescribed rules of procedure for its tribunals, those tribunals may adopt their own proce opinion that a new trial under the circum- to control the action of church tribunals in stances of this case would be a reasonable matters not governed by specific church rules procedure in this country in the Lutheran Church where no specific procedure is provided. This testimony failed to touch the subject of the existence or nonexistence of a church law, church usage, or church cus-dure, and they are not obliged to guide themtom requiring a Lutheran conference to consider a motion for a new trial after determining an appeal to it from the action of a church council in excommunicating a mem-respect that state tribunals possess, subject ber of a congregation. There was just one piece of evidence introduced by the plaintiff which bore directly on the subject under consideration, and that was the decision of the conference itself, the highest church tribunal to which the plaintiff could appeal, that the motion for a new trial could not lead to any further consideration of the cause. In written briefs by the plaintiff himself and by his attorney, both of which descend to scurrility, this decision is characterized as arbitrary, inexcusable, despotic, and revolutionary. There is not a particle of evidence relating to the attitude of the conference or of its members toward the motion for a new trial other than the written decision itself. That is a document which this court can interpret, and on its face it discloses nothing but an opinion that a motion for a new trial did not lie after the conference had decided the appeal. There is not the slightest hint in the evidence that this was not the conscientious opinion of a church tribunal having knowledge of its duties and its powers under church law and precedent, and having final authority in the matter. There is abundant authority that this decision conclusively binds the civil courts; but, leaving the decision out of consideration, there is no evidence offered or introduced from which a civil court or jury could say that a motion for a new trial was a recognized or proper remedy available to the plaintiff after the conference had decided the appeal. It is said that, in the absence of rules adopted by a religious association governing the procedure of its tribunals in cases of excommunication, the rules of the common law prevail. It seems that the practice of granting new trials had not been settled in England so that we can now know definitely what it was in the fourth year of James the First when the common law of England was imported into this country. 14 Encycl. Pl. & Pr. 717. Whatever the practice, it related to jury trials and obtained in courts of general jurisdiction only. It was not permissible, as it is not now permissible, in tribunals possessing special or limited authority. Beyond this, however, the broad, general doctrine apparently approved by a few courts that common-law civil procedure invades church procedure in such a way as selves in the disposition of causes by Blackstone and Chitty and Stephens. Church tribunals possess the same authority in this to the limitation that they cannot violate positive law or act in bad faith, or act so unconscionably or oppressively as to indicate bad faith. Persons becoming members of unincorporated religious societies do so subject to these conditions. It so happens that the Lindsborg Church has an adopted rule governing the subject under discussion, whatever the general laws or customs of Lutheran Church government may be. It provides for an appeal from the church council to the conference, and then specially provides that the decision of the conference shall in all events be final. The case ends absolutely, so far as the person on trial is concerned, when the conference renders its decision. There are no further proceedings of any kind in the same or in any other tribunal. Litigiousness is not indulged in the tribunals of this church to the extent that it may be indulged in the civil courts. There are many other reasons why the plaintiff's case utterly failed, but they need not be enumerated. The foundation of the supposed cause of action, the right to a new trial by the conference, did not exist. The plaintiff in his brief pro se undertakes to give the court the real inside facts about his troubles at Lindsborg, and so gives his version of the whole story, beginning about the year 1901. What he regards as the true motive for the insanity proceedings against him is revealed. The scene in which the plaintiff retired from the conference (he probably means council) is of tense dramatic interest. "My patience was at an end. I sprang up, and with an expression sometimes used by Luther when extremely vexed I left the room.' The briefs contain much other matter quite as remote from the single subject presented by this appeal. It is to be hoped that upon reflection the plaintiff and his attorney will perceive that this court is bound by the record made in the district court. Complaint is made that the district court did not require the answer to be made more definite and certain. Since the court did not reach them, it makes no difference what affirmative defenses the answer contained. The judgment of the district court is affirmed. All the Justices concurring. From the judgment, defendants Rasmus ap WETMORE STATE BANK v. COURTER et peal. Affirmed. al. (No. 19694.) * (Supreme Court of Kansas. Feb. 12, 1916.) (Syllabus by the Court.) 1. JUDGMENT 155 PETITION TO OPEN SUMMONS. On the filing of a petition to open a judgment, it is not necessary to issue a new summons to a defendant who had permitted the judgment to be taken against him by default. [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 306, 307; Dec. Dig. 155.] 2. APPEARANCE 20 SUMMONS-WAIVER— GENERAL APPEARANCE. Rule followed that summons is not necessary when a voluntary general appearance is entered. [Ed. Note. For other cases, see Appearance, Cent. Dig. 88 91-102; Dec. Dig. 20.] 3. APPEARANCE 9 "GENERAL APPEAR ANCE"-WHAT CONSTITUTES. A general appearance is entered by a defendant: (a) When he files a motion to make plaintiff's petition more definite and certain; (b) when he joins in a stipulation that plaintiff may have further time to amend his petition; (c) when he files a general denial; (d) when he files an answer to the cross-petition of his codefendant. [Ed. Note. For other cases, see Appearance, Cent. Dig. §§ 42-52; Dec. Dig. 9. For other definitions, see Words and Phrases, First and Second Series, General Appearance.] 4. PLEADING 236 — AMENDMENT — DISCRE TION. Rule followed that the allowance or refusal to allow amendments to pleadings is within the sound discretion of the trial court. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 601, 605; Dec. Dig. 236.] 5. MORTGAGES 422, 434 - FORECLOSURE VENUE-PARTIES. A foreclosure action is properly brought in the county where the land is situated, and the grantee of the mortgaged land who had assumed and agreed to pay the mortgage is a proper par ty defendant in such action. [Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 1254-1261, 1272-1287; Dec. Dig. 0422, 484.] 6. EVIDENCE 186-BEST AND SECONDARYCONTENTS OF DEED. When upon due demand a defendant grantee of a tract of land is unable or unwilling to produce the deed conveying the title to him, secondary evidence of its contents is admissible, although the record of the register of deeds shows a purported copy of the deed; it being the contention of the demandant that the register's record is an inaccurate copy of the original deed. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 661-673; Dec. Dig. 186.] 7. TRIAL 321 RECEPTION OF VERDICT ABSENCE OF JUDGE. Rule announced in State v. Keehn, 85 Kan. 765, 118 Pac. 851, that by agreement of the litigants and with the approval of the trial judge in open court, the verdict of the jury may be received by a designated attorney in the absence of the trial judge, followed and applied. [Ed. Note. For other cases, see Trial, Cent. Dig. 88 760-763; Dec. Dig. 321.] Appeal from District Court, Kearny County. Hursh & Sloan, of Holton, for appellants. Hayden & Hayden, of Topeka, for appellee Wetmore State Bank. DAWSON, J. In June, 1911, R. H. Courter had a real estate transaction with Nels Rasmus whereby Courter conveyed to Rassubject to a mortgage for $1,000 which Rasmus a quarter section of Kearny county land mus assumed and agreed to pay in exchange for a house and lot in the city of Wetmore subject to a mortgage for $800 which Courter assumed and agreed to pay. The mortgage on the Kearny county land which had been executed by Courter and wife was held by the Wetmore State Bank. This mortgage was permitted by Courter and Rasmus to mature without payment, and the bank brought suit in the Kearny county district court to foreclose its mortgage and for a personal judgment against Courter and to bar Rasmus of his junior and inferior interest in the property. Personal service of summons was obtained through the sheriff of Nemaha county upon all the defendants; they being residents of that county. Courter answered, not denying his liability to the bank, but pleading his conveyance to Rasmus; and that, for a valuable consideration, Rasmus had agreed to pay the mortgage, and prayed for a personal judgment against his codefendant, and that, if a personal judgment were obtained by plaintiff against Courter and Rasmus, the property of the latter be first subjected to the satisfaction of the plaintiff's judgment. Aside from this answer, no appearance was made by either defendant at the trial, and the plaintiff, upon evidence, submitted his cause, and obtained judgment according to his prayer. Some months later Courter filed a petition to vacate the judgment, showing sickness and other good excuse for his and his attorney's nonappearance at the trial. The plaintiff bank answered, confessing the allegations of the petition to vacate, and consented to open the judgment. The defendant Rasmus had no notice of this petition. The court found the allegations of the petition to be true, and on June 19, 1913, set aside the judgment. The plaintiff then amended its petition, repeating all of its original allegations, but enlarging as to Rasmus, and pleading the conveyance by Courter to Rasmus, by the deed of 1911, whereby Rasmus assumed and agreed to pay the mortgage, and praying for a personal judgment against both defendants. Following this a new summons was issued and served on the defendant Rasmus and his wife requiring them to answer on or before October 15, 1913. Action by the Wetmore State Bank, a cor- On October 13, 1913, Rasmus and wife filed poration, against R. J. Courter and others. a motion asking that plaintiff be required to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Proc. § 48 (Gen. St. 1909, § 5641). When Rasmus assumed and agreed to pay the mortgage, he contracted to place himself on exactly the same footing as the original' obligor, his codefendant Courter, and in Kearny county, where the land was situated, not in Nemaha county, where all the litigants resided, was the proper forum. Is there fair ground for a distinction as to the venue in a foreclosure case where the land lies in one county and all the litigants reside in another? Or shall it be said that in such a situation the lawsuit must be divided, and the foreclosure end of it tried where the land lies, and that the breaches of covenant incidental thereto must necessarily be tried in the county where the parties reside? We think not. make its petition more definite and certain. | Kearny county, nor in the contention that On November 14, 1913, Rasmus and wife the court had no jurisdiction. Code Civ. joined in a stipulation, filed November 26, 1913, that plaintiff might have 20 days in which to further amend its petition; and on December 13, 1913, the defendants Rasmus and wife filed their answer on which they denied generally, and denied that the deed from Courter to Rasmus contained any provision binding Rasmus to assume and pay the mortgage. On the same day Rasmus and wife filed an answer to the same effect against Courter's cross-petition. Thereafter, when court convened in February, 1914, Rasmus and wife asked and obtained leave to file a motion to vacate the order of June 19, 1913, setting aside the original judgment, because they had no notice and were not served with summons in that proceeding. This motion recited that they appeared But, even if Rasmus could have avoided a "specially for the purpose of this motion." The motion was overruled. Then Rasmus and wife asked leave to amend their answer to include an additional defense, to wit, the matters leading up to the first judgment, and alleging the same to be a final adjudication | peared and filed a motion that plaintiff be and still in full force and effect. This leave to amend was denied. A motion to the same effect and praying dismissal was likewise filed and overruled. personal judgment by staying out of the Kearny county district court, he did not stay out. North Misouri Railroad Company v. Akers, 4 Kan. 453, Syl. par. 4, 96 Am. Dec. 183. His appearance was general. He ap required to make its petition more definite and certain. He joined in a stipulation giving plaintiff more time to amend its petition. He filed a general denial to plaintiff's petition. He filed an answer to his codefendants' cross-petition. These were all gen before any of his special pleas and exceptions to the jurisdiction. The cause was then tried, and the jury, in answer to a special question, found that the deed of the Kearny county land from Cour-eral appearances, and all entered and filed ter to Rasmus contained a recital that Rasmus assumed and agreed to pay the mortgage. From this judgment Rasmus and wife appeal, assigning several errors, which will be noticed as we proceed. [1, 2] 1. We do not perceive any error in overruling appellants' motion to set aside the order vacating the original judgment. True, no summons was issued, but the only party who could complain was the bank, which had prevailed in the original judgment. Summons is unnecessary when voluntary appearances are made. Bury v. Conklin, 23 Kan. 460. And, as the cause proceeded after the original judgment was vacated, these appellants made repeated general appearances before their special appearance was presented. Abercrombie v. Abercrombie, 64 Kan. 29, 67 Pac. 539. [6] 4. Exception is taken to the admission of testimony that Courter's deed to Rasmus contained a recital that Rasmus, the grantee, assumed and agreed to pay the mortgage. Formal demand had been made on Rasmus to produce the deed. It was not forthcoming. It was then competent to admit secondary evidence. True, it would have been proper, and perhaps the better practice, first to have introduced the record of the register of deeds, as the statute makes it primary evidence with the same effect as the original deed. But even then the original deed must prevail over the register's record if there is a conflict. Moreover, the obvious purpose of the statute is merely to avoid the necessity of explaining the absence or nonproduction of the original deed where its contents are not in dispute, and cannot relate to an issue arising on the accuracy of the register's record. Here the crux of the case depended on whether the register's record was an accu [4] 2. Neither does any error appear in the court's denial of appellants' motion for leave to amend their petition. Aside from the general rule that the allowance or denial of amendments is ordinarily within the sound discretion of the trial court (Bank v. Bad-rate copy of the original deed. The original ders, 96 Kan. 533, 536, 152 Pac. 651), the amendment sought to be made was a mere recital of the earlier steps of the litigation. [3, 5] 3. The motion that appellants should be permitted to go hence alleged that the original judgment was still in full force and effect, contradicted the record, and was properly denied. We see no point to appellants' contention that the action, one in foreclosure deed was in the control of Rasmus. He could not or would not produce it. Therefore Courter's secondary evidence was admissible, and indeed the admission of such testimony was the only way to avoid a palpable miscarriage of justice. It might also be observed that the register's record was later introduced, so the matter descends to a question of the order of presentation of evidence, |