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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 con- selves in the disposition of causes by Blacksider a motion for a new trial after deter- stone and Chitty and Stephens. Church mining an appeal to it from the action of a tribunals possess the same authority in this church council in excommunicating a mem-respect that state tribunals possess, subject ber of a congregation. 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.

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 It so happens that the Lindsborg Church for a new trial could not lead to any further has an adopted rule governing the subject consideration of the cause. In written briefs under discussion, whatever the general laws by the plaintiff himself and by his attorney, or customs of Lutheran Church government both of which descend to scurrility, this may be. It provides for an appeal from the decision is characterized as arbitrary, in- church council to the conference, and then excusable, despotic, and revolutionary. There specially provides that the decision of the is not a particle of evidence relating to the conference shall in all events be final. The attitude of the conference or of its mem- case ends absolutely, so far as the person on bers toward the motion for a new trial other trial is concerned, when the conference renthan the written decision itself. That is a ders its decision. There are no further prodocument which this court can interpret, ceedings of any kind in the same or in any and on its face it discloses nothing but an other tribunal. Litigiousness is not indulged opinion that a motion for a new trial did in the tribunals of this church to the extent not lie after the conference had decided the that it may be indulged in the civil courts. appeal. There is not the slightest hint in There are many other reasons why the the evidence that this was not the con- plaintiff's case utterly failed, but they need scientious opinion of a church tribunal hav-not be enumerated. The foundation of the ing knowledge of its duties and its powers supposed cause of action, the right to a new under church law and precedent, and having trial by the conference, did not exist. 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

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 SUMMONS.

PETITION TO OPEN

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. §§ 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.

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CONTENTS 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

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 "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 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.

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. But, even if Rasmus could have avoided a 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 appeared and filed a motion that plaintiff be 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 The cause was then tried, and the jury, in petition. He filed an answer to his codeanswer to a special question, found that the fendants' cross-petition. These were all gendeed 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.

before any of his special pleas and exceptions to the jurisdiction.

[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 [4] 2. Neither does any error appear in the of the original deed where its contents are court's denial of appellants' motion for leave not in dispute, and cannot relate to an issue to amend their petition. Aside from the gen- arising on the accuracy of the register's receral rule that the allowance or denial of ord. Here the crux of the case depended on amendments is ordinarily within the sound whether the register's record was an accudiscretion of the trial court (Bank v. Bad- rate copy of the original deed. The original ders, 96 Kan. 533, 536, 152 Pac. 651), the deed was in the control of Rasmus. He amendment sought to be made was a mere could not or would not produce it. Therefore recital of the earlier steps of the litigation. Courter's secondary evidence was admissible, [3, 5] 3. The motion that appellants should and indeed the admission of such testimony be permitted to go hence alleged that the was the only way to avoid a palpable misoriginal judgment was still in full force and carriage of justice. It might also be obeffect, contradicted the record, and was prop- served that the register's record was later erly denied. We see no point to appellants' introduced, so the matter descends to a quescontention that the action, one in foreclosuretion of the order of presentation of evidence, and its incidents, was wrongly brought in which ordinarily is hardly so important as

to jeopardize the Judgment. We do not understand it to be the contention of counsel that secondary evidence of the contents of the original deed could not have been introduced under any circumstances merely because the register's record purported to be a true copy of the original. Code Civ. Proc. § 369 (Gen. St. 1909, § 5964).

5. One more question is presented. The case was in the hands of the jury on the evening of February 3d, and the district judge had to leave in order to open court in Finney county next morning. It was agreed by the parties that a local attorney, A. R. Hetzer, Esq., of the Kearny county bar, might receive the verdict, that he might permit the jury to separate in case they did not reach a verdict by midnight, and that he might reconvene them for further deliberation. Mr. Hetzer permitted the jury to separate about 11:30 p. m., and reconvened them at 9 a. m., the following day, and the jury returned a verdict about 11:30 a. m. on February 4th. At that time the district judge was holding court in Finney county, having convened court there that forenoon about 9 o'clock a. m.

[7] Appellants make no excuse for this repudiation of their agreement, and cite Cox v. State ex rel., 30 Kan. 202, 2 Pac. 155, and In re Millington, 24 Kan. 214. But it was clearly pointed out by this court in State v. Keehn, 85 Kan. 765, 118 Pac. 851, that by consent of the parties and with the approval of the trial judge in open court, the verdict of a jury may be received by a designated attorney in the absence of the judge. This whole subject was there treated comprehensively, and the views therein set forth will be followed here. Until the Legislature shall otherwise decree, the tendency to lay aside antiquated artificialities when no prejudice is done to substantial rights is likely to continue.

The fair agreement under which this verdict was received did not affect the appellant's substantial rights; and, since justice seems to have been the result of this lawsuit and no prejudicial error appears in the case, the judgment is affirmed. All the Justices concurring.

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sufficient to justify a finding of the sale of intoxicating liquor.

[Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 414; Dec. Dig. 279.1

2. INTOXICATING LIQUORS 279-MAINTENANCE OF LIQUOR NUISANCE-CONTEMPT— EXAMINATION OF WITNESS.

It is not error to refuse to permit a witness to taste the contents of a bottle to see if they are the same as the contents of another bottle purchased from the accused by the witness. [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 414; Dec. Dig. 279.] Appeal from District Court, Cherokee County.

Butch Trione was convicted of contempt

for violating a temporary injunction against keeping and maintaining an intoxicating liq

uor nuisance, and appeals. Affirmed.

A. L. Majors and Charles Stephens, both of Columbus, for appellant. S. M. Brewster, Atty. Gen., and F. W. Boss, of Columbus, for the State.

MARSHALL, J. This is an appeal from a judgment of conviction for contempt for violating a temporary injunction against keeping and maintaining an intoxicating liquor nuisance. The liquor was sold over a board in the back room of a restaurant, on the premises covered by the injunction. Behind the board was a bench on which liquors and glasses were kept. There were tables and chairs in the room. It was apparently a secret place, maintained for the sale of drinks.

[1] 1. The first contention is that the evidence does not show that the liquor sold was an intoxicating liquor as defined by the law of this state. A purchaser testified that the liquor looked like beer, tasted like beer, and that he believed it was beer. Another witness testified that there was malt in the liquor sold. This was sufficient to justify the court in finding it was an intoxicating liquor under the law of this state. Malt liquors are presumed to be intoxicating. Gen. Stat. 1909, §§ 4361, 4364.

[2] 2. Another complaint is that the court refused to permit a witness to taste the contents of a bottle then in the courtroom, labeled like one purchased from the accused by the witness, to see if the contents were the same as the contents of the bottle the witness had purchased. We do not think it was error to exclude this evidence.

The judgment is affirmed. All the Justices concurring.

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ings were threatened unless the defendant
came to Lindsborg on the first train. About
November 16th or 17th the personal attorney
for the relatrix, John F. Hanson, saw the
defendant's father, J. W. Creager, stated that
marriage was out of the question, and pre-
sented a plan for quietly disposing of the
relatrix and her child when born, which plan,
however, involved the payment of money.
Soon after this interview the attorney be-
sieged the residence of the defendant's par-
ents when J. W. Creager was not at home,
calling at 9 o'clock and at 12 o'clock on Tues-
day, on Wednesday, and on Thursday, but

3. BASTARDS 71-INSTRUCTION-PRESUMP- Mrs. Creager would not engage in conversaTION OF INNOCENCE.

The law presumes morality and uprightness of conduct until the contrary is established, and it is not error to instruct the jury trying an action for bastardy, in which the defendant denies the charge, that the defendant is presumed to be innocent until it has been proved to the satisfaction of the jury by a preponderance of the evidence that he is the father of the relatrix's child.

[Ed. Note. For other cases, see Bastards, Cent. Dig. § 186; Dec. Dig. 71.]

4. Bastards 73-NEWLY DISCOVERED EVIDENCE-DILIGENCE-CUMULATIVE EVIDENCE. The proceedings examined, and held, that the motion for a new trial on the ground of newly discovered evidence was properly overruled because of lack of proof of reasonable diligence in discovering the evidence and because the evidence was merely cumulative.

--

[Ed. Note. For other cases, see Bastards, Cent. Dig. §§ 189, 190; Dec. Dig. 73.] 5. BASTARDS 55, 69, 92-WITNESSES 240, 268, 387 EVIDENCE QUESTIONS CROSS-EXAMINATION PRESENTATION FOR REVIEW-ASSIGNMENTS OF ERROR-BRIEFS. Nineteen other assignments of error examined, and held to present no sufficient ground for reversal.

[Ed. Note. For other cases, see Bastards, Cent. Dig. §§ 153, 178, 181-184, 187, 228-239; Dec. Dig. 55, 69, 92; Witnesses, Cent. Dig. $$ 795, 837-839, 841-845, 931-948, 959, 12281232; Dec. Dig. 240, 268, 387.]

Appeal from District Court, McPherson County.

Action for bastardy by the State, on the relation of Agnes Bjorn, against Robert Creager. The defendant was acquitted, and the State appeals. Affirmed.

G. Nyquist, of McPherson, and John F. Hanson, of Lindsborg, for appellant. P. J. Galle, of McPherson, for appellee.

BURCH, J. The action was one of bastardy. The defendant was acquitted, and the state appeals.

The relatrix lives at Lindsborg. The defendant lives at McPherson. On November 11, 1914, the relatrix wrote a letter to the defendant stating, among other things, that she was in trouble, that the defendant was to blame, and calling to his attention a time when the defendant was at Lindsborg the week after Easter Sunday. Legal proceed

tion with the attorney. On December 9th
the complaint was filed. After a hearing the
defendant gave bond for his appearance at
the next term of the district court.

On January 30, 1915, the relatrix was deliv-
ered of a fully developed child. The trial in
the district court took place on March 11, 1915.
At the trial the relatrix fixed the time when
intercourse occurred at about April 15, 1914,
following Messiah week at Lindsborg, which
lasted from April 4th to Easter Sunday April,
12th. If April 15th were the true date, the
period of gestation was 8 days longer than
the standard time of 280 days. The circum-
stances under which the intercourse occurred
were that the defendant and two other boys
from McPherson met the relatrix and two
other girls at a bakery in Lindsborg about
8:30 in the evening and went to a park. Aft-
er a time the defendant and the relatrix sep-
arated from the others and went to the porch
of Bethany Library, where they remained
about an hour. The relatrix was 19 years
old at the time of the trial, and had known
the defendant for some 4 years. She had
seen the defendant the week before Easter,
but had not been in his company before that
for a long time. At the preliminary hearing
she said she had not been in his company for
3 or 4 years. At the trial in the district
court she would not fix the time further than
to indicate that it was quite a long time.
After the occurrence on April 15th she did
not see the defendant until the following Au-
gust. She found she was sick on May 16th,
and she consulted a doctor the first part of
June. Nothing was said to the defendant
about her sickness when the relatrix saw him
in August. She said she discovered her true
condition in November, although she knew
something was wrong when she commenced
to vomit and her menses stopped in May.

On Easter Sunday, in the evening, a young man met the relatrix by a store, without previous engagement, and walked home with her. At the preliminary hearing she testified they were about an hour in getting home. At the trial she reduced the time to about 15 minutes. This young man was at her birth

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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