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terinining his credibility. (Hughes Instructions to Juries, 88 226, 227.) The credibility of a witness is, of course, a question for the jury, and the court should never use language discrediting a witness, nor indicate an opinion as to the weight which should be given to his testimony. Here the court appears to have placed no estimate on the evid'ence of the defendant, but allowed the jury to determine his credibility saying that in doing so they were at liberty to consider the interest he had in the result of the trial. Attention is called to remarks made by the county attorney in his argument to the jury, but those mentioned in the brief are not of a serious nature and besides they were not brought to the attention of the court when made, and exceptions to them are not preserved in the record.
Judgment affirmed. All the Justices con curring.
(74 Kan. 442)
KELSO v. NORTON et al.
MCMURRAY V. SAME. (Supreme Court of Kansas. Oct. 6. 1906.) 1. PROCESS-SUMMONS-NECESSITY OF SEAL.
A summons issued by the clerk of a district court without being authenticated by the seal of the court is void, and service thereof will not confer jurisdiction upon the court.
[Ed. Note.-For cases in point, see vol. 40, Cent. Dig. Process, $ 35.] 2. JUDGMENT-COLLATERAL ATTACK.
Any judgment rendered or other action taken by a court without jurisdiction is a nullity, and open to attack collaterally as well as directly.
[Ed. Note.-For cases in point, see vol. 30, Cent. Dig. Judgment, $ 924.) 3. MORTGAGES-VOID FORECLOSURE-SUIT TO REDEEM.
In an equitable action to redeem real estate from a sale under void foreclosure proceedings, where redemption is permitted, the equities of the parties will be adjusted in accordance with their rights as mortgagor and mortgagee, the same as if the foreclosure suit had not been commenced. 4. SAME ACCOUNTING — INTEREST ON TAXES PAID.
In an accounting between mortgagor and mortgagee in an equitable action to redeem real estate from void foreclosure proceedings, the mortgagee is entitled to recover interest on taxes paid by him after taking possession under such proceedings at the rate of 12 per centum per annum from date of payment, as provided by section 148 of the tax laws, being section 8423, Gen. St. 1905.
[Ed. Note.-For cases in point, sce vol. 35, Cent. Dig. Mortgages, $ 1780.] 5. SAME-PARTIES.
The object of an equitable action to redeem real estate from void foreclosure proceedings is to adjust equities between the mortgagor and mortgagee, and the mere holder of a judgment lien upon the land sought to be redeemed is not a necessary party to the complete determination of the controversy involved in the suit. [Ed. Note.-For cases in point, see vol. 35, Cent. Dig. Mortgages, $$ 1825, 1826.]
(Syllabus by the Court.)
Error from District Court, Osage County; Robt. C. Heizer, Judge.
Action by Harry P. Norton and Minnie A. Kopke against M. B. Kelso. Judgment for plaintiffs, and defendant brings error. Alfred W. McMurray asked leave to interplead in such action, and from an order denying the same he brings error. Judgment for plaintiffs modified and affirmed, and order refusing leave to interplead affirmed.
July 16, 1887, H. E. Norton, who resided in Lyon county, owned land in Chase county. At that date he was indebted to M. B. Kelso in the sum of $2,100, to secure which he and his wife, Helen R. Norton, executed a mortgage on said Chase county land. No payments having been made on the debt, Kelso commenced a suit in the Chase county district court, September 13, 1889, to foreclose his mortgage. A summons was issued in said suit, which was served personally upon Norton and his wife in Lyon county. Judgment and decree of foreclosure was taken against the defendants upon default. The land was sold under the decree and purchased by Kelso, who obtained a sheriff's deed and entered into the possession of the land, and thereafter claimed to be the owner thereof by virtue of such conveyance. Afterwards both Norton and his wife died, leaving the defendants in error, at that time minors, their sole surviving children and heirs at law. When the children reached the age of majority, they brought an action of ejectment against Kelso to recover possession of the land, claiming that the summons, issued in the foreclosure suit and served upon their parents, did not have the seal of the court affixed thereto, and there fore the foreclosure proceedings, including the sheriff's deed, were void. They obtained judgment against Kelso for possession of the land, which judgment was reversed by this court in the case of Kelso V. Norton, 65 Kan. 778, 70 Pac. 896, 93 Am. St. Rep. 308. In that case this court held that the remedy of the Norton heirs was in an equitable action for redemption, and not in ejectment.
Afterwards, in November, 1903, the defendants in error commenced this action in the district court of Chase county, which was transferred to Osage county for trial. The district court of Osage county entered a decree permitting the Nortons to redeem upon payment of a sum stated. The plaintiff in error now asks that this decree be reversed. Upon the trial the district court filed findings of fact and conclusions of law, in which it found that no seal was affixed to the summons served upon the Nortons in the foreclosure suit and that they were not otherwise served with process. It appears that a summons was found among the papers in the case, which had been regularly served upon the defendants by the sheriff of Lyon county and duly returned. It does not appear that any other or further sum
mons was issued. This summons was pre- GRAVES, J. (after stating the facts). The sented to the trial court for inspection, to plaintiff in error insists that the recital in gether with an impression of the seal of the the judgment, “although personally served court made on another paper in the same with summons," and the order of confirmacase at or near the date of the issuance of tion, together with the presumption which the summons. There is nothing before this usually obtains in favor of the judgments of court but a transcript of the record and pro- courts of general
of general jurisdiction, constitute ceedings had before the trial court. The prima facie proof that a sealed summons journal entry of foreclosure contains the fol- was served upon the defendants in the forelowing recital: “The defendants failing and closure suit, which is not overcome by the neglecting to appear either in person or by evidence presented in this case. In view, attorney, although personally served with however, of the opportunity which the trial summons, and defaulted in and to the pe- court had to examine the original summons tition of the plaintiff.” The order of con- and compare it with an impression made by firmation of sale had in said suit contains the seal of the court in use at the time the following recital: “And the court hav- the summons was issued and near the date ing carefully examined the proceedings, in- thereof, we feel bound by the court's finding cluding the order of sale and the return that the only writ served upon the defendants thereon, is satisfied that the said sale was in the foreclosure suit had no seal aflixed made in all respects in conformity with thereto. The plaintiff in error also urges law," etc. For several years after Kelso that even if the summons was without seal, took possession of the land under his sher- the absence thereof is unavailing in a collatiff's deed he paid the taxes thereon, and the eral proceeding. This court has held that a court in the accounting taken to ascertain suinmons having no seal is void, and service the amount due to Kelso only allowed 6
allowed 6 thereof will not confer jurisdiction. Dexter per cent. interest on the taxes so paid, while
V. Cochran, 17 Kan. 417; Lindsay V. Comhe claims to be entitled to 12 per cent. un- missioners Kearny Co., 56 Kan. 630, 44 Pac. der section 8423, Gen. St. 1905, which reads: 603; Gordon v. Bodwell, 59 Kan. 51, 51 Pac. “In cases where lands are mortgaged, if
906, 68 Am. St. Rep. 341; Taylor v. Buck, 61 the mortg:Igor fails or neglects to pay the
Kan, 694, 60 Pac. 736, 78 Am. St. Rep. 346; taxes, or in case the mortgagor permits any
Stouffer v. Harlan, 68 Kan. 137, 74 Pac. 610, land so mortgaged to be sold for any taxes, 64 L. R. A. 320, 104 Am. St. Rep. 396. It has the mortgagee may pay said taxes, or re
also held that a judgment or other proceeding deem any land so sold for taxes. And on of a court not having jurisdiction is a nullity, payment of any such mortgage, or in the and may be attacked at any time collaterally action to enforce the same, such mortgage as well as directly. Mastin v. Gray, 19 Kan. may demand the taxes so paid with interest | 458, 27 Am. Rep. 149; Meixell v. Kirkpatrick, thereon at the rate of twelve per cent. per
28 Kan. 316; McNeill v. Edie, 24 Kan. 108; annum, or include them in any judgment Amsbaugh v. Bank, 33 Kan. 105, 5 Pac. 384; rendered on the mortgage; and any taxes
Olson v. Nunnally, 47 Kan. 392, 28 Pac. 149, so paid by any mortgagee shall be a lien on
27 Am. St. Rep. 296. We are unable, theresuch land so mortgaged until the same is
fore, to say that the trial court erred in findpaid."
ing the foreclosure proceedings void, or in November 13, 1904, one Alfred W. McMur- | permitting the defendants in error to redeem. ray recovered a judgment in the district
We think the court erred, however, in allowcourt of Chase county against the defend
ing only 6 per cent. interest on the taxes paid ants in error herein for the sum of $500, by Kelso, after the date of the sheriff's deed. and on the 22d day of November, 1904, he
We do not concur in the contention of the made application to the district court of
defendants in error that these taxes were paid Osage county to be made a party to the
by Kelso as owner and not as mortgagee. case of Norton v. Kelso, and file an inter
The defendants in error invoked a remedy plea therein that he might protect his in- purely equitable. They asked the court to terest as the holder of a judgment lien
set aside and ignore the entire foreclosure against the interest of the Nortons in the
proceedings, including the sheriff's deed as land in controversy in that suit. This ap
void. They asked that an accounting be takplication was denied, and McMurray has
en between them and Kelso, on the basis that brought that ruling of the court here for
he was in possession under his mortgage, and review. Both cases have been submitted to
not by virtue of a sheriff's deed. To grant gether, and will be so considered.
the relief prayed for it was necessary to
adjust the rights of the parties upon the asBishop Crumrine, for plaintiff in error sumption that no foreclosure proceedings Kelso. W. A. Randolph, for defendants in were ever commenced, and that the relation error Norton and others.
of mortgagor and mortgagee had at all times Edwin S. Waterbury, for plaintiff in error existed between them. In this view the rights
and duties of Kelso must be measured by bis McMurray. W. A. Randolph and Bishop
mortgage. The defendants in error offered Crumrine, tor defendants in error Norton
to redeem the land by payment of the mortand others.
gage debt, and they should not be permitted to regard the foreclosure proceedings valid Appeal from District Court, Doniphan for one purpose and invalid for another. The County; Wm. I. Stuart, Judge. statute relating to a mortgagee's right to Robert L. Hinchman was convicted of murpay taxes when the mortgagor neglects to do der, and appeals. Affirmed. so was as much a part of the mortgage as
Waggener, Doster & Orr and Arthur C. if it had been written therein, and all pay
Bell, for appellant. C. C. Coleman, Atty. ments of taxes made by Kelso should be
Gen., and S. M. Brewster, for the State. regarded as payments by him as mortgagee, that being his only relation to the land. It would be inequitable to deprive him of any BURCH, J. The record in this case repart of his security merely because he erron- cites the proceedings whereby a man was eously supposed himself to be the owner of convicted and sentenced to the penitentiary the land. In the case of McMurray v. Norton for 25 years for killing his wife in a conflict et al., submitted with this case, we are unable occasioned by the passion of each for the to say that the district court erred in refusing possession of their adopted child. Domestic to permit McMurray to be made a party to infelicity caused the husband. and wife to this suit. He was not a necessary party to separate. She went to live at her mother's the complete determination of the controversy home, and there kept and cherished the ininvolved and his rights could not be injurious- nocent cause of her death. On the morning ly affected by the result of that suit. The of the fateful day the husband made an judgment under which McMurray claims is effort to obtain possession of the child, but a mere statutory lien upon whatever interests failed, whereupon he procured from a justice the Norton heirs may have, if any, in the of the peace a warrant for his wife's arrest. lands which they are seeking to redeem. If He then sought to borrow a pistol from an such an interest is uncovered and established
acquaintance, but was refused. Another perin that suit McMurray can reach it with son, to whom he applied, loaned him a weapan execution. Otherwise, if he thinks such on. He said that anything he did would be an interest exists he can cause it to be sold at in self-defense. He then went to his wife's execution sale, and whoever buys at such sale home, and was soon followed by two armed will be the owner of such interest, and possess constables who sought to raise a possé of all the rights of the original mortgagor. Such the neighbors, but failed. The three men a person might be in a position to invoke
deployed themselves about the premises but relief in an equitable action to redeem, but one of the constables soon went away in a mere lien holder is not. The only function the belief the woman had decamped. The of an equitable action to redeem is to adjust defendant, having been directed by the reequities between a mortgagor and mortgagee, maining constable to do so, went to the east and these are the only necessary parties to side of the house, while the constable himsuch a case.
self proceeded to a door on the south side The judgment of the district court permit
of the building near its southwest corner. ting the defendants in error to redeem is
Finding the object of the quest to be within, affirmed. The court is directed to amend its
the officer promised her immunity from harm judgment so as to make the aggregate amount
if she would open the door, which she did. to be paid by the defendants in error the
He commenced reading the warrant to her sum of $3,954.35, with interest from July 10,
when the defendant left his post, came upon 1905, at the rate of 8 per cent. per annum
the porch where the constable stood, and until paid. The costs in both courts will be
with the blade of his knife opened the screen divided between the parties equally. The
door separating him and the officer from his order of the court refusing to permit A. W.
victim. The woman was armed and pistol McMurray to be made a party is affirmed.
shots were rapidly exchanged between husAll the Justices concurring.
band and wife. She fell, mortally wounded. He strode into the house, gathered up the
child, and went away. The constable took (74 Kan. 419)
his hat in his hand, and ran. On the trial STATE v. HINCHMAN.
the defendant's plea was self-defense, and (Supreme Court of Kansas. Oct. 6. 1906.)
that theory of the case is maintained in
the brief filed for the defendant in this apINFORMATION-FORMAL COxclt'SION.
Under the statutes of this state prescribing peal. It is not necessary to review the eviwhat criminal pleadings shall contain, it is dence for the purpose of elucidating its innot necessary that an information for murder criminating force. The testimony is conshall conclude according to the ancient commonlaw formula for indictments "and so the prose
flicting upon the most important features cuting attorney aforesaid upon his oath doth of the encounter. The jurors have chosen say,” etc., and an omission of the italicized whom of the witnesses they preferred to words from a properly verified information
believe. There appears to have been nothing will not vitiate it. [Ed. Note.-For cases. in point, see rol. 27,
arbitrary in their choosing and this court Cent. Dig. Indictment and Information, $$ 159, cannot say they were wrong. The verdict of 160.]
guilty is amply sustained. (Syllabus by the Court.)
Cross-examination of the state's witnesses was not unduly restricted. It is not intimat- ing to show good faith on the part of those ed that the sheriff was engaged in the sup- who attempted to execute the process. But pression of evidence, and if he were not, the court instructed the jury that even though his reason for omitting to bring into court the defendant went without lawful authority the screen door, which he described fully and upon the premises where Mrs. Hinchman which was readily obtainable, was not im- was, still, if he believed he was legally portant. The witness Heeny's knowledge of there, his right of self-defense would not the Hinchmans and their difficulties was suf- be impaired; if assaulted, he was not bound ficiently probed. The attempts to infiltrate to retreat, but could stand his ground and the record with insinuations against the vir- resist with such force as reasonably aptue of the murdered, woman were all im- peared to be necessary; and do this even proper. Mrs.
Mrs. Stamm testified that after though his assailant were a woman and his Mrs. Hinchman's return from Pennsylvania, wife. If the process were technically legal Hinchman came to see her, bringing MC- but the constables were not acting in good Coy with him; that afterwards Mrs. Hinch- faith under it--were actually abusing it--they man went to see her husband, and that were trespassers. If they were acting in she carried no pistol. Other questions pro- good faith, their attitude was made the pounded to this witness are not credited with
same as if the process were legal, even any importance in the brief and none is though invalid. Hence the instructions givapparent. It made no difference in the case en were sufficient for the constables who what unexpressed ideas were in the mind were not on trial. The defendant makes no of Miss Cochran while Mrs. Hinchman sat, claim that he did the shooting in any official revolver in hand, behind locked doors, and capacity, or under the compulsion of any the defendant and the constables executed officer. If he did not go there in good faith, their maneuvers on the outside. No evi- but went there to assist in the abuse of dence of importance offered on behalf of the legal process, he was a trespasser. If he defendant was excluded. Leaman McCoy did acted in good faith he was accorded the testify once to the threats of the deceased, same rights as any person rightfully staand that was sufficient. The defendant tioned and wrongfully assailed. The guilt claims to have based his conduct upon a or innocence of the defendant must finally certain state of facts presenting itself to depend upon what occurred in immediate him at the time of the killing. This state connection with the firing of the fatal shot, of facts, he says, included an attempt on and nothing but the clearest prejudice in the part of his wife to shoot him before giving or refusing instructions bearing upon he fired at all. Having acted upon much other matters can make the judgment subject later information communicated in a much to reversal. more impressive manner, it was of little The instructions given were not erroneous. consequence that Mrs. Hinchman had a pisto) The criticisms upon them are chiefly verbal. once some months before. The record shows The context shows the meaning of the exthe defendant detailed in full the facts re- pression "in the wrong" to be clearly equivalating to his opportunity to retreat, and that lent to making the first assault with a pistol. ultimately he gave his opinion upon them. The word "affray” is shown by the same Hence, assuming his conclusion to be ad- context to mean the shooting at each other missible, the refusal to allow him to express by Mr. and Mrs. Hinchman. The expression it in the first instance was not prejudicial, "force the belief upon the mind” was used
The court committed no error in refusing to make the distinction between having some instructions asked by the defendant. The tendency to induce belief and actually genlegal principles suggested by those numbered erating belief. The latter part of the twen4 and 11 were correctly stated by the court ty-second instruction being merely explanain instructions given. As declared in his tory and illustrative of accurate and posibrief and in his testimony, the defendant tive enunciations of the law elsewhere clearclaimed to be acting in self-defense, and not ly and correctly made was not misleading, in defense of his child, and he described no and the same is true of the twenty-fourth state of facts presenting even the phantom instruction. The twenty-third instruction is of a necessity for shooting his wife to save not open to the objection made to it. The his child. Therefore, the obtrusion of this effect of the thirty-sixth instruction has alsubject into instruction No. 6 vitiated it. ready been discussed. The only purpose of instruction No. 16 was The information is attacked because it to give legal sanction to the conduct of the does not conclude according to the formula defendant and the constables in their inva- deemed indispensable in indictments at comsion of the Stamm premises. The court was mon law "and so the prosecuting attorney probably of the opinion the proposed arrest aforesaid upon his oath doth say," etc. The of Mrs. Hinchman was understood to be a statutes of this state prescribe what an inmere device to procure the custody of the formation shall contain and divest it of all child, and hence that the complaint and
technicalities of form. The allegations of warrant conferred no lawful authority; fact made in the charging part distinguish therefore the jury was instructed that those the offense, and, when verified by the prosedocuments could be considered only as tend- / cuting officer, every statement in it is upon his oath. Therefore an omission of the itself from the record the disputed questions italicized words will not vitiate it.
vitiate it. The of fact, uninfluenced by the conclusions majority opinion in the case of State v. reached by the trial court. We should not Coleman, 180 Mo. 152, 81 S. W. 978, 69 L. be justified in doing so. The oral evidence R. A. 381, is disapproved.
introduced was relatively small in quantity, The judgment of the district court is af- but a part of it bore upon the vitally imfirmed. All the Justices concurring.
portant matter of the mental condition of Gilliain at about the time he executed the
deed. Miss Thummel was not present at the (74 Kan. 871)
trial. Oral testimony was given in direct
denial of portions of her deposition. Tbe TRUITT et al. v. BECKTOLD.
trial judge was aided in resolving such con(Supreme Court of Kansas. Oct. 6, 1906.)
tradiction by the opportunity of observing WRIT OF ERROR-REVIEW-ORAL TESTIMONY AND DEPOSITIONS.
one of the parties to it. The conclusions Questions of fact will not be determined formed from such observation were an aid on error uninfluenced by the conclusions of the in interpreting and weighing the other statetrial court, though most of the evidence was in ments made by Miss Thummel. Therefore the form of depositions; the oral evidence having borne on a vitally important matter.
the reviewing court lacks a part of the in[Ed. Note.For cases in point, see vol. 3,
formation that aided the district court in Cent. Dig. Appcal and Error, $ 3965.]
its decision, and cannot interfere with the Error from District Court, Lyon Counts;
result reached except upon the view that
there was no evidence to support it. No Dennis Madden, Judge.
useful purpose would be accomplished by Action by W. B. Berktold. T. M. Truitt,
reviewing the evidence at length. administrator, and others intervenec. Judg
It is enough to say that upon an examinamnent for plaintiff. Intervenors bring error.
tion of the whole record no sufficient reaAflirmed.
son appears for reversing the judgment, McLaughlin & Messerley and L. Frank
which is accordingly affirmed. Ottofy, for plaintiff in error. C. S. Briggs, J. L. Hornsby, and Denuis Madden, for defendant in error.
(74 Kan. 870)
ZINDARS V. ERIE GAS & MINERAL CO. PER CURIAM. H. L. Ferris, being in
(Supreme Court of Kansas. Oct. 6, 1906.) debted to R. W. Gilliam, made him a deed
WRIT OF ERROR - RECORD -- AGREED STATEto a tract of land as security. Gilliam ex
MENT OF FACTS. ecuted a conveyance of the property to his The agreed statement of facts, not being a niece, Carrie Thummel. She conveyed the part of the record, unless made so by bill of land to l'erris, who paid her a part of the
exceptions, cannot be considered on error,
though a copy of it is attached to the transcript debt and gave her a mortgage for the re- of the record. mainder. This mortgage was assigned to W. [Ed. Note.--For cases in point, see vol. 3, B. Becktold, who brought action to foreclose Cent. Dig. Appeal and Error, $ 2416.) it. The administrator and heirs of Gilliam,
Error from District Court, Neosho County. who had in the meantime died, intervened
Action by L. H. Zindars against the Erie and asked that the transfer from Gilliam
Gas & Mineral Company. Judgment for de to Miss Thummel be set aside as having
fendant. Plaintiff brings error. Affirmed. been obtained by undue influence, and that the mortgage be held to belong to the es
J. L. & C. S. Denison, for plaintiff in error. tate. Upon trial the court found in favor of W. R. Cline, for defendant in error. the plaintiff and rendered judgment accordingly, from which the intervenors prosecute
PER CURIAM. This action was brought error.
to cancel an oil and gas lease on the ground For some time before Gilliam executed the of an alleged forfeiture. The case was tried deed to his niece she had been doing most on an agreed statement of facts, and the of his writing for him, and the plaintiffs in court found and rendered judgment for the error contend that the admitted facts es- defendant. The plaintiff brings the case tablish such a confidential relation between here for review on a transcript of the record, them as to raise a presumption that she ex- to which is attached a copy of an agreed ercised undue influence upon her uncle, and statement of facts. The agreed statement thereby to cast upon her the burden of prov- was not made a part of the record by a bill ing the contrary. Whether this contention of exceptions. The only contention of the is sound need not be determined, for Miss | plaintiff in error is that the court erred in Thummel testified at great length concern- not finding the facts for him. Defendant in ing all the details of the transaction, and error contends here that this court cannot her evidence, if given credence, is sufficient examine the agreed statement upon which to rebut such presumption.
the trial court found for defendant, because It is further contended that, inasmuch as it was not made a part of the record and most of the evidence was in the form of is therefore not before this court. An agreed depositions, this court should determine for statement of facts is only the evidence in