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day party on the 16th of May, and she was with him seven or eight times between April and the latter part of October. His home is in Nebraska. The relatrix had no regular company, but was with other young men occasionally.

meeting with the defendant changed to April 23d.

New trials are granted because of newly discovered evidence only when the evidence could not with reasonable diligence have been discovered and produced at the trial. Code One of the two girls who, with the relatrix, Civ. Proc. § 305 (Gen. St. 1909, § 5899). The were members of the party at the park in bread incident came out as a detail of the Lindsborg, was out of the state at the time of conduct of the three boys and three girls the the trial. The other was a witness, but was night they went to the park. The relatrix unable to fix the date when the young people omitted to testify that they delivered bread were together. She could not say whether to a Luther League meeting at the church the time was April or May. The three boys before going to the park. The fact was first were witnesses. Each one fixed the date late mentioned by one of the witnesses called on in May. They went to Lindsborg in an au- her behalf, but she knew where she went tomobile with two other boys, one of whom and what was done on the night she met the was out of the state at the time of the trial. defendant with the others at the bakery. Her The other was a witness, and fixed the date attorney knew the defendant was not conlate in May. Some of the boys fixed the time fessing the charge against him, and ought to quite definitely by the fact that they were have known that every minute circumstance, studying for final examinations just before the close of school. One of them thought the time, place, movement, and conduct of the date was the 18th of May. Another fixed meeting between the relatrix and the defendthe time by the fact that he had no overcoat ant would be scrutinized with the utmost for the trip, the overcoat being at the clean- sharpness. If a Luther League meeting at ers, and his overcoat was at the cleaners the church to which the party of young peofrom May 13th to May 19th. The boys tes-ple carried refreshments on the way to the tified that after meeting the girls and before they went to the park they took a package of bread from the bakery to a church on North Main street. The relatrix testified that in the course of the conversation with the defendant he referred to an excursion train on the Union Pacific which he had intended to take to Salina, but did not. There was testimony that such a train was run on April 15th. The defendant's father, J. W. Creager, who was the Union Pacific fireman, recalled no such train on that date. There was expert testimony relating to the period of ges

tation.

The foregoing presents a sketch of the material features of the evidence. The assignments of error will be considered in the order and in the form presented by the personal attorney of the relatrix.

[4] "First. In overruling plaintiff's motion for new trial on the ground of newly discovered evidence, presented on hearing of said motion. (The leading error.)"

This evidence tended to show that the Luther League held meetings at a church. The only meetings held after Messiah week were on April 23d, May 6th, and May 19th. Relatrix filed an affidavit that coffee bread was taken to the church on the evening she was with the defendant, and she had no company home from church on the evening of May 19th. Other evidence was that no bread or coffee bread was served with the refreshments at the Luther League meeting of May 19th. They had ice cream that night. Coffee bread was served at the meeting on April 23d, which was purchased at the bakery where the boys met the girls. The attorney for the relatrix is very anxious now to have the date of the

park be important now for the purpose of fixing the date of the visit to the park and to the library porch, it was important at the trial, and should have been given attention in preparing for the trial, especially since the date of the Luther League meeting did not fit in with the testimony of the prosecutrix that she was with the defendant on the night of April 15th. At the hearing of the motion for a new trial no testimony whatever was offered showing or tending to show that all the evidence relating to the bread incident could not have been discovered and produced at the trial. On the other hand, testimony of the relatrix herself concerning facts within her knowledge is offered as if the facts were newly discovered. Her attorney now says in his brief that there was no time at the trial to investigate the bread incident. He should have testified in the district court. Conceding the statement to be true, he should have applied to the district court for time. This court has knowledge that McPherson and Lindsborg are connected by telephone wires which the diligent may use. When passing upon the motion for a new trial, the district court was cognizant of the course the proceedings had taken, and, in the absence of any showing of an excuse for nonaction at the proper time, this court has no ground for holding that the district court abused its discretion or committed error. The date of the meeting at the bakery and what followed were important facts and disputed facts. Every witness who gave testimony on these subjects went into details. The bread incident came out in this collateral way. The relatrix cannot now make an issue of it, and the testimony offered at the

hearing of the motion for a new trial is merely cumulative to the testimony which was produced concerning the main issue. It is said that the new evidence would impeach the testimony of some of the witnesses favorable to the defendant. The court has decided several times that a new trial will not be granted for that purpose.

[1] "Second. In overruling plaintiff's several objections to the introduction of any evidence by the defendant relative to transactions with defendant's parents pertaining to an attempt to compromise this cause out of court by one Hanson, and also to evidence that he was attorney for relatrix, which objections appear in the testimony of J. W. Creager, Mrs. Judith Creager, John F. Hanson, and in the opening statement of defend ant's counsel, and in refusing to strike out such matters admitted. (A leading error.)”

One of the defenses of the action was that the motive actuating the prosecutrix was to get $1,500 from the parents of a boy who was not guilty. The defense was a proper one, it was proper to state it in opening the case for the defendant, and it was proper to introduce evidence in support of it. The weight of the evidence introduced was a matter for the jury to consider.

"Third. In this, that the instructions are insufficient generally in not including one instruction explaining the pertinence, materiality, etc., of these matters pertaining to compromise referred to in error 2, if that matter was at all admissible in this cause."

The instructions were sufficient for the guidance of the jury in the determination of the one issue before it, whether or not the defendant was the father of the relatrix's child. If the state desired special instructions upon particular matters, requests for such instructions should have been presented, which was not done.

[2, 5] "Fourth. In overruling plaintiff's objections to evidence offered by defendant on cross-examination of relatrix in reference to company kept with other young men when there was no evidence at any stage of the proceeding indicating improper relations with such men. (A leading error.)"

The evidence was that near the probable date of conception the relatrix associated with a young man other than the defendant under circumstances which offered as much opportunity and as much likelihood of improper conduct with him as with the defendant. Such evidence is competent.

"Fifth. In failing to give any instruction on the subject of the relatrix keeping company with other young men if any of such evidence was admissible at all."

tion self-sustaining declarations of defendant as to his denying the alleged relation with relatrix when she was not present and the matter was not res gestæ, and refusing to strike out same. (Certain error.)"

The attorney for the relatrix pressed the witness for statements of the defendant, made on the way home from Lindsborg the night he was with the relatrix, and made at other times, admitting or indicating that he had had improper relations with her. The witness testified that there had been talk on the subject of the defendant's relations with the prosecutrix, but that the defendant's statements would lead to an opposite conclusion. The attorney for the relatrix having thus taken down the bars, it was proper for the defendant to walk in, and on crossexamination ask for the statements.

"Seventh. In admitting over plaintiff's objection letter written by relatrix to defendant dated November 11, 1914, for any purpose and any part thereof but particularly that part referring to her father and uncle wanting to take this matter into court."

The objection was to the letter as a whole, and not to any specific portions of it. The entire letter was competent evidence for the defendant, and it made no difference when it was introduced.

"Eighth. In sustaining defendant's objection to relatrix's explaining what she meant in letter by the statement 'the week after Easter Sunday,' if such letter were admissible."

The letter spoke for itself. Besides, the relatrix said there was a mistake in it, and she told over and over again how she fixed the time when she was with the defendant.

"Ninth. In sustaining defendant's objection to relatrix's answering question as to the possibility of the time of meeting being later than April 15, 1914, on the ground that it was leading."

The question was leading and suggestive. The form of the question was immediately changed, and the witness, apparently taking the cue, said she was "not quite certain." Besides this, she had expressed her uncertainty in other portions of her testimony.

"Tenth. In sustaining defendant's objec tion to relatrix's stating who the father of her child was as a result of a particular intercourse, on the ground that the question called for a conclusion of the witness."

Utterly frivolous in view of the repeated statements of the relatrix that she never had intercourse with the defendant except on the one occasion, and her testimony that the defendant was the father of her child.

"Eleventh. In overruling plaintiff's objec

This assignment of error is met by the tion to defendant's asking relatrix if she did response to the third.

"Sixth. In admitting on cross-examination of Reed by defendant over plaintiff's objec

not testify in a certain way in the justice court, objecting on the ground that it was incompetent, irrelevant, and immaterial, and

particularly because not the best evidence; the testimony being transcribed and filed." Perfectly legitimate cross-examination under elementary rules.

"Twelfth. In sustaining defendant's objection to relatrix's explaining why a Miss Esther Forsberg was not at the trial as a witness."

"Eighteenth. In not granting a new trial because of surprise, and particularly because of not getting Esther Forsberg as a witness."

What testimony the witness would have given if she had been present, or would give if her presence can be secured at another trial, is not confided to the court, and the

Miss Forsberg's nonattendance as a witness rule which should have been applied in the was sufficiently explained.

"Thirteenth. In overruling plaintiff's objection to witness Saylor on cross-examination being required to guess at the time of this occurrence after he had said that he did not know. (Gross error.)"

Utterly frivolous.

"Fourteenth. In sustaining defendant's objection to question asked Reed by plaintiff pertaining to studying on the ground of its being leading."

The question was leading, and was one by which the attorney undertook to badger his own witness.

"Fifteenth. In overruling plaintiff's objection to testimony of Bryan Darrow as to the contents of a daybook in a dry-cleaning shop on the ground that it was not the best evidence."

The witness was telling how he had refreshed his memory and said: "I looked it up on their books." That was the answer objected to, and the objection was properly overruled. Afterwards the witness gave the dates shown by the books referred to without objection. The attorney for the relatrix now asks for a new trial so he can introduce the books themselves, and the books show the precise dates given by the witness.

[3] "Sixteenth. In that the instructions given, generally outside of matters already referred to, are not sufficient for the purpose of this case, and do not state the law correctly."

See "Third," above. The law presumes morality and uprightness until the contrary is made to appear, and in a case of this character guilt must be made to appear to the satisfaction of the jury by a preponderance of the evidence.

"Seventeenth. In not granting plaintiff a new trial on account of misconduct of the jury, and because one juror had failed to disclose his prejudice and disqualification on his examination as to his qualification as a juror, as appears by the affidavit of M. C. Donal. (A very material error.)"

The examination of the juror whose conduct is questioned is not given in the abstract. For all the abstract shows, he may have been accepted without examination. The affidavit does not disclose misconduct, or any prejudice against the relatrix or the proper prosecution of bastardy cases, or any legal disqualification to sit as a juror.

case in which Mary was a witness governs. "Nineteenth. In not granting a new trial on the grounds that the verdict was given under passion and prejudice, and because it was contrary to the evidence."

The only prejudice and passion revealed in this case appear in the brief of the attorney for the relatrix. The warning given him in respect to his demeanor toward members of this court (State v. Linderholm, 95 Kan, 669, 671, 149 Pac. 427) is now extended, and vilification of the judges of other courts in briefs which he files here will not be tolerated again. The verdict is sustained by sufficient evidence.

"Twentieth. In refusing a new trial on each and every ground set up in the motion for a new trial, and not hereinbefore specifically pointed out."

The court considers none but errors specifically assigned. It cannot undertake to check the records to see if counsel has omitted anything.

"Twenty-first. In overruling challenge to the qualification of juror Clerk, plaintiff exhausting all his challenges. (Give this error careful attention.)"

This subject is covered by a long line of decisions some of which are referred to in the case of State v. Hoerr, 88 Kan. 573, 129 Pac. 153.

"Twenty-second. In all rulings adverse to

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For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Rehearing denied March 17, 1916.

Appeal from District Court, Cherokee the judgment does not become a lien upon such County. land.

John Colletti was convicted of maintaining a liquor nuisance, and appeals. Affirmed. A. L. Majors and C. B. Skidmore, both of Columbus, for appellant. S. M. Brewster, Atty. Gen., and F. W. Boss, of Columbus, for the State.

WEST, J. The defendant was convicted of maintaining a liquor nuisance, and appeals, assigning as error that the verdict is contrary to the law and the evidence. Numerous witnesses desired the jury to believe that it was a social affair by a club; but the sheriff and undersheriff told what they saw, and this was quite sufficient to support the verdict. Being in accord with this part of the evidence, which the jury evidently believed, the verdict is also in harmony with

the law.

The judgment is affirmed. All the Justices concurring.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 1341, 1343-1349; Dec. Dig. 780.]

Appeal from District Court, Washington County.

Action by William H. Emery against the Farmers' State Bank of Washington and others. defendants, From judgment for

plaintiff appeals. Affirmed.

A. J. Freeborn, of Washington, Kan., and Heasty & Barnes, of Fairbury, Neb., for appellant. Edgar Bennett and J. W. Rector, both of Washington, Kan., for appellees.

JOHNSTON, C. J. This was an action by William H. Emery to enjoin the Farmers' State Bank from selling property of his which had been levied upon to satisfy a judgment rendered in favor of the bank against Emery and Edgar Bennett. The judgment was based on a promissory note for $1,000 signed by Emery and Bennett. Per

EMERY v. FARMERS' STATE BANK OF sonal service was obtained upon both Emery WASHINGTON et al. (No. 19892.) (Supreme Court of Kansas. Feb. 12, 1916.) (Syllabus by the Court.)

1. PRINCIPAL AND SURETY 163-DETERMINATION OF RELATION APPLICATION OF SURETY-TIME FOR MAKING.

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Under section 464 of the Civil Code (Gen. St. 1909, § 6059), one who has signed an instrument as surety is entitled to show in an action brought thereon that he signed as surety only and have a judgment entered certifying that to be his relation to the other parties to the instrument, and that the judgment so entered shall be satisfied from the property of the principal debtor so far as it can be done before seizing the property of the surety to satisfy the balance of the judgment, but the application to have his relation to the parties determined and the judgment accordingly entered should be made before the final judgment is entered. [Ed. Note.-For other cases, see Principal and Surety, Cent. Dig. §§ 446-454; Dec. Dig. 163.]

-

RIGHT TO OPEN
PRINCIPAL

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2. JUDGMENT 360, 720
AND MODIFY RES JUDICATA
AND SURETY.
A judgment rendered without a determina-
tion whether any of those jointly and severally
bound upon an obligation is a surety may be
opened up and modified so as to show who is
principal and who is surety, upon any of the
grounds provided in the Code for opening up and
modifying judgments, and, where the question
has been submitted and determined by the court,
and no appeal is taken from its decision, a party

is not entitled to have it reconsidered and rede-
termined in another action.

[Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 698, 699, 1251; Dec. Dig. 360, 720.]

3. JUDGMENT

JECT.

780-LIEN-PROPERTY SUB

and Bennett when the action upon the note was begun, but neither of them made any defense, and on June 2, 1914, judgment was rendered against both of them by default. On June 16, 1914, an execution was issued upon the judgment at the instance of the bank, and thereupon Emery filed a motion in the case asking for a modification of the judgment on the ground that he was only a surety on the note, and that the bank had acted fraudulently in taking judgment against both signers as principals. The motion came on for hearing August 13, 1914, and upon the showing made the motion was denied. No appeal was taken from the decision on the motion, and it has never been modified or reversed. Shortly afterwards the bank procured the issuance of an alias execution which was levied upon real estate of Emery and on September 8, 1914, he brought this injunction action to prevent the sale of the land. On the trial the plaintiff offered his testimony, but the court on a demurrer held that, no ground having been shown by him for injunction, the temporary order was dissolved, and from this judgment he appeals.

Emery alleged and offered testimony to show that, while he signed the note as though he were a principal, he was, in fact,

only a surety, and that this fact was known to the bank before judgment was taken against him. He also stated that the bank had released property of Bennett from the lien of the judgment, although he was inA judgment lien does not attach to any in- solvent and had no other property subject terest greater than the judgment debtor possess- to be taken in satisfaction of the judgment. ed in the land when the judgment was entered, It appears that a separation occurred beand, if the judgment debtor has transferred his tween Bennett and his wife, who is a daughentire equitable estate in land to a third person before the rendition of the judgment, and noth-ter of Emery, and that in March preceding ing remains in him except the naked legal title, the rendition of the judgment upon the note

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

he contracted with his wife to convey to prescribed by the Code, and in no other way, her two lots free and clear of incumbrance. and it is not claimed that the plaintiff has Emery knew of this settlement and contract | brought himself within any of these proviabout the time they were made, which was months before the judgment on the note was rendered. After the judgment, and in order to make a clear conveyance to his wife, Bennett procured the bank to release the lien of the judgment on the lots by giving it a bond signed by his father and himself binding them to pay any part of the judgment which the bank might lose by reason of the release of the lien upon the lots.

[1, 2] The ruling of the court refusing the injunction must be sustained. Plaintiff re lies on section 464 of the Civil Code, which, in effect, provides that in cases where two or more persons execute an instrument and are jointly and severally bound a party may show that he signed the instrument as surety and procure the entry of a judgment certifying who is principal and who is surety, and that an execution thereafter issued on such a judgment shall be levied upon the property of the principal debtor, and, if his property is not sufficient to satisfy the judgment, a levy may then be made on the property of the surety to satisfy the balance of the judgment. Gen. Stat. 1909, § 6059. Plaintiff had the opportunity to make the showing when the judgment was rendered against him, and, although he was personally served with summons, and knew that judgment was to be taken upon the note, he made no showing nor any appearance in the case. No reason is shown why the plaintiff did not appear and have his relation to the note and the terms of the judgment determined at that time. Summons was served upon him so that he might present any defense or secure any rights he might have in the premises. Every issue in the case and all the terms of the judgment, including the relation of the defendants to the note and to the plaintiff, should have been submitted to the court at that time, and the defendants served are as much bound by the judgment then rendered as if they had answered and made a defense in the action. When a final judgment is rendered, it is ordinarily the end of the litigation as far as the plaintiff is concerned, but, of course, questions may arise between the defendants

sions. If it were assumed that the judgment did not operate as a merger of the relation of principal and surety, and that a party might come in after judgment and show that he is only a surety, it can hardly be contended, and the Nebraska case does not hold, that he can have more than one determination of the question. As we have seen, the plaintiff did apply to have the judgment modified and his suretyship established, setting up substantially the same grounds as were alleged in this action. His motion was denied, and the decision still stands. Under no theory can it be held that he is entitled to have the question tried again and again, and especially when the decision invoked by him stands unreversed and unmodified.

[3] One ground upon which the application for injunction is based is that the bank had released its lien on the lots of Bennett to the prejudice of the plaintiff. This ground cannot be sustained, as it appears that Bennett had transferred the full equitable title he held in the lots to his wife, the daughter of the plaintiff, a considerable time before the judgment was rendered. This left in Bennett no more than a naked legal title, and this he had bound himself to convey. A judgment cannot attach to a mere naked legal estate nor to any greater interest than the judgment debtor has in the land. The judgment creditor is not regarded or treated as a bona fide purchaser, nor does he acquire any interest in the property itself, but only a lien or preference over subsequently acquired interests in the property. Harrison v. Andrews, 18 Kan. 535; Holden v. Garrett, 23 Kan. 98; McCalla v. Knight, 77 Kan. 770, 94 Pac. 126, 14 L. R. A. (N. S.) 1258; Pierce v. Brown, 74 U. S. (7 Wall.) 205, 19 L. Ed. 134.

It follows that the bank had no lien to surrender, and that plaintiff therefore lost nothing because the so-called release of the lien was executed.

The judgment of the district court will be affirmed. All the Justices concurring.

(No. 19916.)

(Supreme Court of Kansas. Feb. 12, 1916.)

(Syllabus by the Court.) 1. RAILROADS 482-FIRES-NEGLIGENCESUFFICIENCY OF EVIDENCE.

as to their relations to the obligation and MINOR v. ATCHISON, T. & S. F. RY. CO. their relative liability. Kupfer v. Sponhorst, 1 Kan. 77. The plaintiff calls attention to a case in Nebraska to the effect that, if a judgment is rendered against two parties, one of whom is a principal, and the other a surety, without having the relations of the parties to the obligation determined, the surety may come in after judgment and show his suretyship and have his relations to the creditors as well as his joint debtors determined. It would seem that the judgment in such a case might be opened up, modified, and set aside according to the rules

In an action to recover damages from a railway company for negligently causing the burning of a barn in the operation of its railroad, the testimony tended to show that it was not an impossibility for igniting sparks and cinders to be carried by a high wind a distance of 800 feet from a locomotive and there set fire to dry and inflammable material, and it is held that the evidence submitted herein was sufficient to support the verdict of the jury that the

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