(74 Kan. 615)

HARDER v. KANSAS & C. P. RY. CO. (Supreme Court of Kansas. Nov. 10, 1906. Rehearing Denied Dec. 8, 1906.

1. APPEAL-HARMLESS ERROR-CONSOLIDATION OF CAUSES.

A judgment will not be reversed on account of the refusal of the trial court to consolidate the action in which it was rendered with another merely because such a consolidation might have been proper. To procure a reversal on account of such ruling the party aggrieved must show that his rights have been substantially prejudiced thereby.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4047-4051, 4128.] 2. SAME.

A husband and wife severally owned tracts of land which adjoined and which were used as one property, but not as a homestead. A railway company condemned a right of way across both tracts. Each separately appealed from the award of damages made by the commissioners on account of the land taken from the corresponding tract. A motion made by the landowners in the district court to consolidate the cases was overruled. Held, that there is no presumption that such ruling was prejudicial to the substantial rights of the parties, and that in this case no such prejudice is shown.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4038-4046.]

(Syllabus by the Court.)

Error from District Court, Woodson County; Oscar Foust, Judge.

Condemnation proceedings by the Kansas & Colorado Pacific Railway Company. From an award of damages, C. F. Harder appeals, and from a judgment adopting the award, he brings error. Affirmed.

Kirkpatrick & Holmes, for plaintiff in error. J. H. Richards and C. E. Benton (Lamb & Hogueland, of counsel), for defendant in

error.

MASON, J. For many years past C. F. Harder has owned all of a 340-acre tract of land, lying in a compact body, excepting two • square forties belonging to his wife. The entire tract has been used as one farm but no part of it is occupied as a homestead. In 1902 the Kansas & Colorado Pacific Railway Company condemned a right of way for its road across the tract, lying in part upon the land of Harder and in part upon that of his wife. A separate award of damages was made to each of them and each appealed. In the district court the cases were consolidated by agreement, and a settlement was effected by which a lump sum was paid in satisfaction of both claims. A judgment was entered in the case providing, among other things, that the company should construct and maintain at a designated point in its road bed on the land of Harder a pile bridge 70 feet in length and should leave a 35 foot opening in its fences on each side of such bridge. When the road was built the company put in a private crossing for Harder over its track on his land, but shortly afterwards took it up. In 1903 the company condemned a narrow strip of ground parallel

to and adjoining its first right of way. As before, damages were separately awarded to Harder and to his wife, and, as before, each appealed. In the district court the Harders asked that the cases be consolidated, but the request was refused. A trial of Harder's appeal resulted in a verdict and judgment adopting the award already made. Harder prosecutes error.

Under various assignments the plaintiff in error complains of the action of the trial court in denying the motion to consolidate the two causes, in ruling out evidence relating to the pile bridge that had been constructed and to the grade crossing that had been taken out, and in giving instructions with regard to the measure of damages. In support of the claim of error with respect to the motion to consolidate it is contended that the railroad company was obliged to pay, and the husband and wife together were entitled to receive, a sum equal to whatever diminution in value the appropriation of the additional strip occasioned to the entire tract, of which each owned a part, treated as one property. It may be assumed that this contention is correct. It does not follow, however, that the refusal to try the two appeals together was error. Consolidations are ordinarily a matter of convenience, concerning which the trial court has a large discretion. A judgment should not be reversed on account of a ruling in such connection unless some actual prejudice is shown. It is not made to appear that there was any difficulty in determining how much of the total depreciation referred to fell upon the part of the land owned by the husband and how much upon that owned by the wife, or in determining how much of it was due to the appropriation of the husband's land, and how much to the appropriation of the wife's. If such apportionment was practicable and no reason appears to the contrary-no injury could result to the landowners from the cases being tried separately. If, in the present proceeding, Harder was denied the right to prove and to recover for any increased loss he suffered by the taking of a part of his own land, growing out of its use in conjunction with that of his wife, his ground of complaint is not that his appeal was tried alone but that a wrong theory of the measure of damage was adopted. The claim of Harder that his land became less valuable because the railway company took a part of his wife's land and that he was entitled to recover damages by reason thereof was a matter proper to be investigated and decided in the proceeding based upon the appeal from the award made by the commissioners with respect to the tract so taken. If the omission of Harder to join in that appeal had the effect to cut him off from a right which he would otherwise have had to be heard in that proceeding, the right so lost could not be restored by a consolidation of the two cases.

The district court rightly rejected testimony directed to the question whether the pile bridge constructed by the railway company conformed to the judgment rendered in the first condemnation proceeding. Any failure in this respect could not be redressed in the present action. So, with regard to evidence concerning the taking up of the private crossing over the track already built. Whether the expense of such crossing, if it should be replaced, would fall upon the railway company or upon the landowner did not affect the question of how far the latter was damaged by the taking of the additional land. The jury were not told in so many words that they should take into account the fact that the land of Harder was used in connection with that of his wife, nor was such an instruction asked. The charge given, however, included this langge: "It is simply the intention of the law that compensation must go hand in hand with the actual loss or injury sustained by the person whose land is taken. In the determination of this question as to what would be full compensation, you are not confined to simply awarding the plaintiff the value of the land actually taken for railroad purposes and considered only as a separate, independent tract of land, but you may also consider the use to which the land has been appropriated by the plaintiff, and its situation and value with reference to other land of the plaintiff with which it is connected in use, and, looking at the land appropriated from that standpoint, and in the light of all the evidence in the cause, you will award the full or fair market value of the land appropriated by the defendant company, with such damages, if any, as may be sustained to another tract by reason of the appropriation of a part for railroad purposes adjacent to right of way as may be shown by the evidence in the cause." In the absence of a request for anything more specific this must be deemed sufficient to cover the ground suggested. The jury had been permitted to view the premises, and to hear evidence covering fully the relation of Harder's land to that of his wife, as regarded situation-and use. They were directed to avail themselves of all the information so obtained-not to disregard any of it.

The verdict allowed the plaintiff only the value of the land actually taken, which was agreed upon. His claims for additional compensation, as shown by an itemized statement accompanying his petition, were based upon the supposition that the use to which the company would put the newly condemned land would injure him, first, by obstructing the opening in the pile bridge under the track to which he was entitled by the terms of the first condemnation, thereby interfering with the drainage of his land and with his passing back and forth under the track, and second by impeding his passage across the track at a point where the private crossing had previously been constructed. The company in

its answer disclaimed all purpose under the second condemnation to acquire any right to obstruct the opening under the pile bridge by embankments, fences or otherwise, and agreed that such bridge should be maintained in the future as required by the judgment rendered in the first condemnation proceedings. The evidence did not compel the conclusion that the plaintiff suffered any damage in respect to either drainage or crossings. He appears to have had a full and fair hearing upon these matters and not to have been hampered in respect thereto, either by therulings that were made upon the admission of testimony, or by the instructions that were given to the jury.

The judgment is therefore affirmed. All the Justices concurring.

1. BENEFICIAL ASSOCIATIONS-TRANSFER OF ASSETS-LIABILITY OF DIRECTORS.

The directors of an insolvent mutual benefit association, whose by-laws required the payment of benefits out of a fund collected for that purpose, acting in good faith and for the best interest of the association and under the direction of the stockholders, transferred the entire assets of the association to another similar association, without first paying a fixed benefit liability, although there were sufficient funds for that purpose on hand. Held, that such act was a breach of duty imposed upon the directors by the by-laws of the association, for which they become personally liable to the beneficiary. 2. SAME-BONA FIDE I'URCHASERS.

Such assets cannot be recovered from a bona fide purchaser for a valuable consideration. (Syllabus by the Court.)

Error from District Court, Shawnee County; Z. T. Hazen, Judge.

Action by W. W. Harvey, receiver of the Masonic Mutual Benefit Society of Kansas, against L. C. Wasson and others. Judgment for defendants, and plaintiff brings error. Affirmed in part, and reversed and remanded in part.

A. B. Quinton, E. S. Quinton, and W. W. Harvey, for plaintiff in error. Valentine, Godard & Valentine, Loomis, Blair & Scandrett, and W. A. S. Bird, for defendants in

error.

GREENE, J. W. W. Harvey, as receiver of the Masonic Mutual Benefit Society of Kansas, a corporation, brought this action against L. C. Wasson and others, directors of the society, and A. S. Andrews and others, as individuals, upon a judgment previously obtained against the society in favor of Harry S. Moulton to recover a personal judgment against the directors, and to have certain lands purchased from the society and their grantees, and now owned by the other defendants, declared to be impressed with a trust to pay the Moulton judgment, and to

society had not parted with such lands in the proper execution of the trust, and there is nothing in the record that gave them constructive notice to the contrary. It is contended that the owners of the land had constructive notice of the want of authority of the Kansas society to convey the land, which was by warranty deed, because the chain of title shows that the defendant's grantor took title from the Illinois company by deed from its trustee. At most, such notice would only require the present owners to know that the trustee was vested with authority to convey, and whether he had such authority could only be litigated by a cestui que trust, or some person interested directly in a proper execution of the trust.

The judgment of the district court is affirmed, so far as it held that the real estate is not impressed with a trust and that the plaintiff was not entitled to recover the notes, bonds, and mortgages; but, so far as it held that the plaintiff could not recover a personal judgment against the directors, the judgment is reversed, and the cause remanded, with instructions to instructions to enter. judgment against such directors. The costs in this court are taxed equally between the directors and the plaintiff in error. All the Justices concurring.

(74 Kan. 658!

STATE v. NIMERICK. (Supreme Court of Kansas. Nov. 10, 1906.) CRIMINAL LAW-NEW TRIAL-NEWLY DISCOVERED EVIDENCE.

A new trial will not be granted on the ground of newly discovered evidence, unless it clearly appears that the testimony is new, material, not cumulative, and that it could not with reasonable diligence have been obtained at the time of the trial.

[Ed. Note. For cases in point,, see Cent. Dig. vol. 15, Criminal Law, §§ 2306, 2318, 2324, 2328.]

(Syllabus by the Court.)

Appeal from District Court, Allen County; Oscar Foust, Judge.

Frank Nimerick was convicted of a violation of the liquor law, and appeals. Affirmed.

Geo. C. Ferguson, for appellant. C. C. Coleman (C. L. Evans and R. H. Bennett, of counsel), for the State.

GRAVES, J. The appellant was convicted in the Allen county district court of selling intoxicating liquor and maintaining a common nuisance, in violation of the prohibitory liquor law. After conviction he filed a motion for a new trial as to the nuisance, which contained several grounds, but he relied solely upon the ground of newly discovered evidence. The motion was overruled, and he brings the case here for review. The only error presented is the refusal of the district court to grant a new trial. The showing, made upon the application, consisted of

an affidavit of Charles Fisher, and the testimony given by one of the witnesses on the trial. The affidavit reads: "Chas. Fisher, being first duly sworn according to law, deposes and says: (1) That he is at this time, and has been for more than two years last past, a resident of Allen county, Kansas. (2) That on the 1st day of January, 1904, he leased and rented the following described property situated in Allen county, Kansas, from the agent of the owners for the period of two years, viz., the one-story brick building situated on å tract of land in the southwest corner of the S. W. 14 of section 25, township 24, range 18, which property is more fully described in the eighth count in the information filed in the above-entitled action. (3) That your affiant took possession of said property on the 1st day of January, 1904, and retained possession and control of said property until January 1, 1906, under the terms of a certain lease entered into between this affiant and the agent of the owners of said property. (4) That at no time during the life of the above-named lease did Frank Nimerick have anything to do whatever with the management or control of said place, nor did he work there during that time in any capacity whatsoever; neither did he sell or cause to be sold any intoxicating liquors in or around said place during the two years above named. (5) That your affiant was not in Allen county, Kansas, when the above-named cause came on for hearing; neither did he communicate to the said Frank Nimerick or his attorneys any of the above facts named and set forth until your affiant had returned home, and learned that said Frank Nimerick was charged and convicted of operating and maintaining said described place, and further affiant sayeth not."

The evidence of the witness was in substance, that he had been at the place alleged to be a nuisance several times, and saw the defendant there, who acted as a patron of the establishment, but not as owner, keeper, or helper. No showing was made that the appellant did not know all the facts stated in the affidavit of Fisher at the time of the trial. No effort was made to have Fisher present as a witness. The statement of Fisher that he did not inform the defendant or his counsel of the facts contained in his affidavit, is not equivalent to a statement that the defendant did not know and, by reasonable diligence, could not have known these new facts at or before the time of trial. There is no statement of Fisher that he will testify to the facts stated in his affidavit, upon a further trial of the case, nor even that he will be present as a witness. It is suggested that if this witness had been placed upon the stand by the defendant that he would have refused to testify upon the ground that his evidence would tend to criminate himself. No assurance is given that he would not do so if a new trial should

be granted, nor does the defendant say that his want of diligence in obtaining Fisher's attendance at the trial was due to his belief that such refusal would be made. The showing is insufficient: "Before a new trial will be granted upon the ground of newly discovered evidence, it must affirmatively appear, among other things, that it was through no want of diligence on the part of those applying for the new trial that the new evidence was not earlier discovered and produced at the trial." Carson v. Henderson, 34 Kan. 404, 8 Pac. 727; Baughman v. Penn, 33 Kan. 505, 6 Pac. 890; Sexton v. Lamb, 27 Kan. 432; Clark v. Norman, 24 Kan. 515.

The judgment of the court below is affirmed. All the Justices concurring.

(74 Kan. 667)

STATE v. MILLER.

(Supreme Court of Kansas. Nov. 10. 1906.) 1. CHATTEL MORTGAGES-SALE OF MORTGAGED PROPERTY EVIDENCE.

Proof of a purpose to defraud is essential to a conviction under section 4259 of the General Statutes of 1901, forbidding the sale of mortgaged personal property without the written consent of the mortgagee, and in a prosecution under such section an instruction is erroneous which undertakes to enumerate all the elements of the offense and makes no mention of the wrongful intent of the defendant.

2. SAME-FRAUDULENT CONCEALMENT-INFOR

MATION.

Where an information charging the fraudulent concealment of mortgaged personal property describes the mortgage as one executed by the defendant and his wife to secure a note signed by them. and the evidence shows that, while the mortgage was signed by both, and included an assumption of liability for any deficiency, the note secured was signed by the defendant alone, the variance is not material, no prejudice being shown.

3. CRIMINAL LAW-COMPLAINT-WARRANT.

It is not required that different felonies prosecuted upon the same complaint and warrant shall be therein stated in separate counts. (Syllabus by the Court.)

Appeal from District Court, Graham County; Chas. W. Smith, Judge.

John I. Miller was convicted of fraudu lently concealing mortgaged property and selling the same, and appeals. Judgment on first count affirmed, and on second count reversed and remanded.

G. W. Jones, for appellant. C. C. Coleman, Atty. Gen., and John S. Dawson, for the State.

MASON, J. John I. Miller was prosecuted upon an information charging him in one count with fraudulently concealing mortgaged personal property and in another with selling such property without the written consent of the mortgagee. He was convicted upon each count, and appeals.

The second count contained an allegation that the sale complained of was made with the purpose of defrauding the mortgagee, but the instructions upon that branch of the case, in enumerating the matters necessary to be

found by the jury in order to convict, omitted all reference to such fraudulent intent, so that the jury were authorized to find the defendant guilty if he sold the mortgaged property without the written consent of the mortgagee, irrespective of his motive. The question is therefore presented whether the statute (Gen. St. 1901, § 4259) makes it a crime to sell mortgaged chattels under any and all circumstances unless authority to do so is given in writing? The language of the section involved upon its face seems to bear that construction. It reads: "That any mortgagor of personal property or any other person who shall injure, destroy or conceal any mortgaged property, or any part thereof, with intent to defraud the mortgagee, his executors, administrators, personal representatives, or assigns, or shall sell or dispose of the same without the written consent of the mortgagee, or his executors, administrators, personal representatives, or assigns, shall be deemed guilty of larceny." A somewhat similar statute was so construed in State v. Reeder, 36 S. C. 497, 15 S. E. 544, and the construction was approved in State v. Rice, 43 S. C. 200, 20 S. E. 986. Beard v. State, 43 Ark. 284, is to the same effect, but is accompanied by a strong dissent. State v. Bronkol, 5 N. D. 507, 67 N. W. 680, leans in the same direction, but there the use of the word "willfully" in the statute affects the matter. On the other hand, expressions indicating a contrary view are to be found in the following cases, in none of which, however, was it necessary to decide the question. Foster v. State, SS Ala. 182, 7 South. 185; Hurds, 19 Neb. 316, 27 N. W. 139; Ruhnke, 27 Minn. 309, 7 N. W. 264. lar question was involved in State v. Eastman, 60 Kan. 557, 57 Pac. 109. The statute there under consideration declared it to be embezzlement for an agent to fail to pay over money to his principal under certain circumstances, nothing being said with regard to his motive. Complaint was made of the failure of the trial court to instruct the jury that no conviction could be had unless they found that the defendant intended to convert the money to his own use. The court said: "The general rule, of course, is that a guilty intent is a necessary ingredient of crime. Bishop. Stat. Crime, §§ 132, 231, 351, 362. We do not understand it to be disputed in this case as a general proposition. However, its application to the case is denied because of the failure of the statute to declare intent to be an ingredient of the offense. There are some cases which hold that, unless made so by statute, a guilty intent is not necessary to the commission of offenses mala prohibita; that is, not inherently bad, only bad because prohibited. The offense charged against the defendant in this case is not bad merely because prohibited, but it is malum in se bad in itself. It is a species of embezzlement, and is classified by the statute in immediate connection with the common-law

State v. State v.

A simi