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(74 Kan. 117)

The evidence of the marshal is that the peROBERTSON V. ROOK ISLAND LUMBER titioner drew his knife and the marshal left & MFG. CO.

suddenly and went home for the purpose of (Supreme Court of Kansas. Nov. 10, 1906.) procuring a revolver. Soon after, he returned On rehearing. Affirmed.

up town in search of the petitioner. He depuFor former opinion, see 85 Pac. 799.

tized one of the bystanders to go with him

for the purpose of assisting in arresting Milton Brown, T. A. Noftzger, and C. C.

Stilts. He went to another

went to another house some Brown, for plaintiff in error. Fred Washbon

blocks away and procured a revolver for himand Dale & Amidon, for defendant in error.

sell, giving his own to the deputy. In

quiries were made for Stilts and they were PER CURIAM. In this case upon a first

told that he had gone toward the blacksmith hearing the judgment of the trial court was

shop. They went and hunted for him. After affirmed. Thereafter a rehearing was asked

a little while they learned that he had started upon the ground, among others, that due no

home, and they went to his home for the tice had not been given to the attorneys of

purpose of arresting him for the disturbance. the plaintiff in error of the setting of the

It was about 11 o'clock in the evening and case. It was found that there had been a

the petitioner was in his house. The marpartial omission in this respect, and largely

sbal had no warrant. The testimony at the upon that account the petition for a rehearing preliminary examination, so far as it conwas granted.

cerns the assault and the circumstances leadAfter giving full consideration to the ar

ing up to it, consists mainly of the evidence guments presented at the second hearing,

given by the marshal. He testified that he the court is still of the opinion that the case

sent the deputy to the back door and went was rightly decided, and the judgment is

himself to the front door and called to the therefore affirmed.

petitioner; that the latter said: "What do you want?" and called him a vile name. “I

said, 'Now, Jim, there is no use to act this (74 Kan. 805)

way; I am going to arrest you,' and he said, In re STILTS.

'Don't come in. Finally I pulled the screen (Supreme Court of Kansas. Dec. 8, 1906.)

door back and stepped up on the floor and HABEAS CORPUS-ASSAULT-EVIDENCE.

started in, and just then he threw and hit Evidence taken on a preliminary examination of petitioner on the charge of assault

me, and just then I shot." His testimony is ing an officer who attempted to arrest him with

that the petitioner threw a beer bottle at him, out a warrant examined, and held sufficient to striking him in the pit of the stomach; that justify holding the petitioner to the district

he then fired four shots from a revolver, one court. (Syllabus by the Court.)

of the shots taking effect in the arm of Stilts,

who then came out and gave himself up. The Application of James Stilts for a writ of marshal took him to a physician, and, it aphabeas corpus. Writ denied.

pearing that his wound was serious, he was R. W. Turner and E. P. Hotchkiss, for pe

allowed to return home, and no further attitioner. D. J. Coy and G. H. Bailey, for re

tempt was made to prosecute him for the disspondent.

turbance on the street, but four days after

wards the marshal filed the complaint upon PORTER, J. The petitioner was charged which the warrant for his arrest issued on with a felonious assault in striking one Jacob

the charge of assaulting the marshal and Burger in the pit of the stomach with a striking him with the beer bottle. deadly weapon commonly known as a "beer It is argued by the petitioner that the evibottle,” with intent to maim, wound, and dence conclusively shows that no offense was kill. On his preliminary examination, he

committed; that the attempted arrest was was held under bond to answer to the dis- without authority of law for the reason that trict court.

the peace had been restored; that the disIt is claimed that the evidence of the pre-orderly conduct of the petitioner had ceased, liminary examination shows that no offense and he had gone to his own home and had the was committed. The facts leading up to the right, under the circumstances, to resist an charge upon which the petitioner was held arrest without a warrant. The state conare as follows: During the evening of Au- tends, on the other hand, that the evidence gust 4, 1906, the petitioner had an altercation shows a disturbance of the peace and a folwith Jacob Burger in front of the hotel in the lowing up by the officer for the purpose of town of Randall. Burger was the city mar- an arrest so closely in point of time that it shal. The petitioner was drunk and disor- was all one transaction. “The arrest must be derly. He used abusive and threatening lan- made at the time of the offense or immediate guage toward the marshal who made no at- ly after its commission, or upon fresh purtempt to arrest him at that time. He then suit, while the offender is fleeing from the challenged the marshal to go down to the scene of the crime.” 2 A. & E. Enc. of Law, railroad tracks, a distance of about 200 feet 876. The law is well settled, however, that from the hotel. The challenge was accepted. where an officer attempts to make an arrest When they got to the railroad they stopped. for a misdemeanor committed in his view, after peace has been restored, the arrest is to recover a personal judgment against him unlawful unless made with a warrant. upon the note and to foreclose the mort“When a policeman, after having seen a gage. He caused a summons to issue to breach of the peace or a misdemeanor com- John Oscar Wiren directed to the sheriff of mitted, departs, and afterwards returns, he Shawnee county, Kan., to be served, at the cannot arrest without warrant for such previ- same time informing such sheriff that John ous offense so committed in his view. The Oscar Wiren was an inmate of the insane shortness of the interval does not affect the asylum located in Shawnee county. This question.” Meyer v. Clark, 41 N. Y. Super. summons was returned showing service by Ct. 107. See, also, 1 Chit. Cr. Law, 23; 2 Esp. delivering a copy to John Oscar Wiren perRep. 540; 1 East, P. C. 305; Reg. v. Johnsonally on October 5, 1900. Subsequently Marsden, 11 Cox, C. C. 90; Regina v. Walker, the plaintiff made application to the district 25 Eng. Law & Eq. 589. The evidence at court for the appointment of a guardian a preliminary is not necessarily conclu- ad litem for John Oscar Wiren, upon the sive upon any point, and is generally suffi- ground that he had been adjudged insane cient to authorize a holding over if a proba- and was then an inmate of the insane asybility appears that an offense has been com- lum at Topeka. Upon this application the mitted.

court appointed D. C. Bye guardian ad Whether the petitioner is or is not guilty | litem for John Oscar Wiren, who, after takcan best be determined from a full hearing of ing the guardian's oath, filed a general deall the evidence, and we do not feel warrant- | nial, and the cause was tried without other ed under the circumstances in discharging service. personal judgment was rendered him.

against Wiren and a decree foreclosing the The writ will be denied. All the Justices mortgage was made. Under this judgment concurring.

and decree, an order of sale was issued and the land sold to the plaintiff. The sale was

confirmed, and a deed executed to him. On (74 Kan. 775)

March 6, 1905, the probate court of Rawlins MARQUIS v. WIREN et al.

county appointed 0. A. Olson guardian of the (Supreme Court of Kansas. Dec. 8, 1906.) person and estate of John Oscar Wiren, and INSANE PERSONS JUDGMENT AGAINST on the same date the guardian filed his apVACATING.

A judgment rendered against an insane plication in the district court of Rawlins person upon personal service made after he

county asking that the judgment theretofore had been adjudged insane, and before a guardian rendered in the case of Marquis v. Wiren be has been appointed, is void, and should be set set aside for the reason that the court had aside upon application made in the original action by the guardian of his person and es

no jurisdiction of the defendant, Wiren, and tate.

the entire proceedings were void. The ap[Ed. Note.-For cases in point, see Cent. Dig. | plication was granted and the judgment was vol. 27, Insane Persons, $ 182.]

set aside. From this order, the plaintiff (Syllabus by the Court.)

prosecutes error.

The only question to be determined is: Error from District Court, Rawlins Coun

Was the judgment rendered void for want ty; A. C. T. Geiger, Judge.

of jurisdiction of the defendant, Wiren? Application of C. A. Olson, guardian of

There is but one way for a court to obtain John Oscar Wiren, to set aside a judgment jurisdiction of an insane person and that is against Wiren in favor of R, W. Marquis.

by having the process served on his guardJudgment for plaintiff, and defendant brings

ian. Section 3941 of the General Statutes error. Affirmed.

of 1901 authorizes any person to institute Albert Hemming and Valentine, Godard & proceedings in lunacy against one suspected Valentine, for plaintiff in error. Fred Rob- of being insane, or incapable of managing ertson and J. S. West, for defendant in error. his own affairs, and section 3945 requires the

probate court, when it has been determined GREENE, J. This is a proceeding to reverse that such person is insane or incapable of an order of the district court of Rawlins managing his own affairs, to appoint a county setting aside a judgment formerly guardian of his person and property. Secrendered in that court against John Oscar tion 3958 provides that in all actions against Wiren, in favor of R. W. Marquis. It ap- an insane person the process must be served pears that on August 30, 1889, John Oscar upon his guardian, and also makes it the Wiren, a single man, gave his note in the duty of the guardian to prosecute and desum of $200 to the Des Moines Loan & fend all actions instituted in behalf of or Trust Company, and also gave a mortgage against such ward. These sections were in upon certain real estate in Rawlins county force at the time the original proceedings to secure its payment. The plaintiff in error were had, but were repealed by chapter subsequently became the owner of the note 299, p. 450, Laws of 1905, but no change was and mortgage, and certain payments thereon made which in any way affects the proceedbeing in default he commenced his action ings had upon which the original judgment on February 28, 1900, in the district court was rendered. None of these provisions of Rawlins county against John Oscar Wiren were observed in the attempt to bring Wiren

into court. The court, therefore, did not obtain jurisdiction of him, and the judgment was void.

The order setting aside the judgment upon the application of the guardian of Wiren is affirmed. All the Justices concurring.

(74 Kan. 707)

ANTHONY V. BRENNAN. (Supreme Court of Kansas. Dec. 8, 1906.) MORTGAGES-TRANSFER-VALIDITY.

The act relating to the recording of assignments of mortgages (Laws 1899, p. 340, c. 168), does not restrict the methods by which a negotiable note and mortgage securing it may be transferred, nor prevent a transfer of the ownership of such paper by mere delivery. (Syllabus by the Court.)

Error froni District Court, Clay County; Sam Kimble, Judge.

Action by J. F. Brennan against C. M. Anthony. Judgment for plaintiff, and defendant brings error. Affirmed.

W. P. Anthony, for plaintiff in error. J. P. Otis and Geo. L. Davis, for defendant in error.

Pac. 473, 33 Am. St, Rep. 370, and it was held that the title to a note and the mortgage securing its payment passed by delivery, and that the possession of the instruments and their production at the trial by the plaintiff furnished prima facie evidence of his ownership. The payees of the note are not contesting Brennan's title to the paper. Whatever the rule might be if the title and ownership were challenged by the payees, it is clear that delivery and possession were sufficient for Brennan's purpose. Plaintiff in error appears to concede this to have been the correct rule, but he claims that it has been changed by the act relating to the assignment of real estate mortgages. Laws 1899, p. 340, c. 168. That act does not undertake to limit the methods by which real estate mortgages may be transferred, and it does not provide that the failure to make a record of an assignment of a mortgage shall invalidate the security or the transfer. It was intended as a protection to mortgagors, and the only penalty prescribed for not recording the transfer is that all payments made by the mortgagor to the mortgagee or to any one who appeared to be the owner shall be credited to the mortgagor, although the assignee never received such payments. This was the view taken of the statute in earlier cases. Myers v. Wheelock, 60 Kan. 747, 57 Pac. 956, and Wheelock v. Myers, 64 Kan. 47, 67 Pac. 632. The owner

. ship of the paper was sufficiently shown in the pleadings, and also in the proof that was offered to sustain it.

The judgment will be affirmed. All the Justices concurring.

JOHNSTON, C. J. This was an action brought by J. F. Brennan to recover on a promissory note for $495, executed by C. M. Anthony to Laura Fish and five other payees, and to foreclose a mortgage which he gave to secure the payment of the note. Defauit was made in the payment of the note and J. F. Brennan, who became the owner and holder of the note and mortgage shortly after they were executed, brought this action. It appears that at the commencement of the action he had obtained a written assignment of the mortgage from only one of the mortgagees. For this his original petition was attacked by demurrer and held to be insufficient, and he filed an amended petition setting forth assignments 'which he subsequently obtained from the remain

mortgagees, executed after the action was begun. The sufficiency of the amended petition was challenged by a demurrer, which the court overruled. A trial resulted in a judgment upon the note, and a decree foreclosing the mortgage.

It is now insisted that the amended petition did not show a right of recovery in Brennan, and that the court erred in overruling the demurrer. The argument is that as Brennan had not procured all of the assignments of the mortgage when the original petition was filed, he did not then have an existing cause of action against Anthony, and that the defect was not cured by obtaining and pleading them in the amended petition. These assignments were not essential to a statement of his cause of action. The note in suit was negotiable in form and it and the mortgage were transferable without a written indorsement, and by mere delivery. A like question was raised in O'Keeffe v. National Bank, 49 Kan. 347, 30

(74 Kan. 697) ROBBINS v. FRAZIER. (Supreme Court of Kansas. Dec. 8, 1906.) 1. TAXATION-TAX DEED-FORM.

The provision of the statute that a tax deed shall be substantially in a prescribed form, which provides for a recital of the date of sale, implies a requirement that, in order to be good on its face, it shall show on what day the sale was made, and such requirement is not met by a showing that it was made on one or the other of two designated days, without indicating which. 2. SAME-RECITALS IN DEED.

A recital in a tax deed covering several disconnected tracts that they were sold on the 2d and 4th days of September will be interpreted as meaning that some of them were sold on the 2d and some on the 4th, and where, there is nothing in the deed to indicate upon which of the two days a particular tract was sold, the deed will be held invalid as a conveyance of that tract even when attacked after having been of record for five years. (Syllabus by the Court.)

Error from District Court, Kiowa County; E. H. Madison, Judge.

Action by W. W. Robbins against R. A. Frazier. Judgment for defendant, and plaintiff brings error. Reversed.

John W. Davis, for plaintiff in error. L. M. Day, for defendant in error.

MASON, J. This case presents the ques- / should “show the time of sale." These extion whether the trial court ruled correctly pressions, however, are employed arguendo. in holding a tax deed to be good against an and the context suggests that they have espeattack made after it had been of record for cial reference to the necessity that the deed five years.

The only objection to the deed shall indicate that the sale was made at necessary to be considered is that it fails to the time fixed by law—that is, under the presshow with certainty the day of the sale on ent statute, during the period beginning with which it is based. It covers five disconnected the first Monday of September-a requirement tracts. Its recitals are, in substance, that which, in this instance, is met by other recitthe county treasurer “on the 2d and 4th days | als than that quoted.

als than that quoted. Nevertheless, the fact of September, A. D. 1890," offered each of remains that the exact date of the sale of a said tracts for sale as it was reached in its particular tract marks an important point in turn and sold it. It is, of course, impossible the proceedings leading up to a tax deed; it that a single tract should have been sold on is the time from which interest on the amount different days, and this language can only be of delinquent tax is computed, and from interpreted to mean that a part of the lots which the right to redeem runs. In view were sold on the 2d and the rest on the 4th. of this consideration the implied requisition The tract here involved is the third on the that the deed shall recite it must be deemed list in the order in which they are numbered as mandatory as though expressly stated, in the deed. There is nothing in any part of and, by the principle followed in Gibson v. the instrument from which any inference can Kueffer, (19 Kan. 534, 77 Pac. 282, the failure be drawn as to whether this particular tract to comply with such a requirement is fatal was sold on the first day named or on the to the deed even upon an attack made after second. There is, therefore, a failure to show it has been of record for more than five upon what day the sale was in fact made. years. If this omission is ordinarily fatal to a tax The judgment is reversed, and the cause deed the one here involved cannot be saved remanded for further proceedings in accordby the consideration that it discloses that the ance herewith. All the Justices concurring. sale took place upon one or the other of two days and that the interval between them is slight. A requirement that the date of a

(74 Kan. 704) transaction shall be designated is not met by

GERDOM et al. V. DUREIN. merely restricting the possible dates to two. (Supreme Court of Kansas. Dec. 8, 1906.) Whether the interval between them is small 1. APPEAL CASE-MADE - EXTENSION OF or great cannot affect the matter. Is such

TIME. omission fatal? The statute does not in terms

Under the provisions of section 5482, Gen.

St. 1905, time to make and serve a case-made require a tax deed to show the day of the sale.

may be extended beyond ten days after entry It does, however, provide that the deed must of judgment, by an order to that effect in the be substantially in a prescribed form, of

journal entry of judgment, and, when so done.

no other or further action is necessary prior to which the following is a part (Gen. St. 1901,

the expiration of the time so given. § 7676): "And whereas, the treasurer of

2. JUDGMENT-RES JUDICATA. said county did, on the day of

Where, in an action of partition, a decree A. D.

* *

at [an adjourned sale has been entered which fully determines the of] the sale begun and publicly held on the

respective interests of the parties in the lands

sought to be divided, and in pursuance of propfirst Tuesday of May, A. D. expose


er proceedings thereunder the court orders a sale at public sale

the real property of the property, such decree and proceedings above described *

and whereas, at

are binding upon the parties, and neither can

thereafter abandon the same and maintain the place aforesaid, A. B. * * * having

another action in partition to accomplish the offered to pay the sum of dollars and same purpose.

cents * * the said property was (Syllabus by the Court.) stricken off to him at that price." This

Error from District Court, Shawnee Counamounts to a requirement that the date of sale shall be stated unless it can be said that

ty; A. W. Dana, Judge.

Action by Frank Durein against Anna such date is not a material or substantial matter. It is true that the deed shows af

Gerdom and others. Judgment for plaintiff,

and defendants bring error. Reversed. firmatively that the land was offered in the course of the regular September sale, and Quinton & Quinton, for plaintiffs in error. sold more than three years before the deed Hazen & Gaw and C. A. Magaw, for defendwas executed. It is, therefore, difficult to ant in error. see how the failure to recite the exact date could have misled or in any way prejudiced GRAVES, J. The first question presented the owner or any one interested in the land. in this case is a motion to dismiss the petiIn Haynes v. Heller, 12 Kan. 381, it is said tion in error, for the reason that the casein the syllabus that a tax deed "must show made was not settled and signed within upon its face the time at which the property the time prescribed by Acts 1905, p. 535, c. was sold, or it will be void,” and in the opin- | 320, § 3, being section 5482, Gen. St. 1905, ion that "the time at which the sale is made which reads: "The case-made or a copy is, of course, material," and that the deeds thereof shall, within ten days after the judg

87 P.-72



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ment or orders entered, be served upon all opposite or adverse parties by delivery thereof to such parties or their attorney or by delivery thereof to the clerk of the court in which such judgment or order is made or entered; 本 *

provided further, that the party applying for said order of extension shall immediately upon securing and filing an order of extension give notice in writing to the opposite or adverse parties of such extension by serving a copy of such notice personally on such opposite or adverse parties or their attorneys or any of their attorneys of record, or by mailing a copy of such notice enclosed in an envelope directed to the last known address of such opposite or adverse parties or their attorneys of record; postage prepaid, and such parties shall thereupon take notice of such extension. Proof of the service of the notices herein required may be made before the court or judge, signing the case-made as herein provided, by affidavit that such notice has been served or mailed, as herein provided for." The close of the journal entry of judgment in this case reads: "Thereupon the defendants filed their motion for a new trial, which motion was presented to the court and after due consideration by the court was overruled, and the defendants excepted to the ruling thereof. Thereupon said defendants were allowed ninety days in which to make and serve their case-made for the supreme court herein." The case-made was settled and signed August 28, 1905. No other application was made for an extension of time beyond the 10 days after the judgment was entered, and no notice was served upon the adverse parties, or their attorneys, that such application would be made. The only compliance with these requirements of the statute is found in the journal entry of judgment. We think this sufficient. The order of the court, made as a part of the journal entry or judgment when all parties were in court and had notice thereof, is a substantial compliance with the terms of the statute, and nothing further is necessary to be done until the expiration of the time so given. It is useless to notify a party of that which he already knows. The object of this statute was to prevent parties from prolonging the preparation of a case-made, by extensions obtained from time to time without the knowledge of the adverse party. The practice followed in this case fully accomplishes this purpose. Therefore the motion is overruled.

This requires a consideration of the case on its merits. This is an action in partition, The defendant in the district court interposed the plea of former adjudication, which was overruled, and that ruling is claimed by the plaintiff in error to be erroneous. The question will be understood by a consideration of the following facts : In 1892, the defendant in error commenced an action for

partition of the land in controversy in the district court of Shawnee county against the plaintiffs in error. In that action a decree of partition was entered as prayed for. Commissioners were appointed to make division of the property, who reported that such division could not be made without manifest injury to the rights of the parties, and thereupon returned an appraisement of the land. The court thereupon, on May 18, 1892, ordered the land to be sold according to law, and the proceeds paid into court to await its further order. There the proceedings rested. No further steps were taken to enforce the decree. On the 6th day of March, 1903, the plaintiff, instead of proceeding under the decree already obtained, began this action of partition. His petition was filed in the same court, was between the same parties, was concerning the same land, and contained substantially the same allegations as the petition in the former case. The plea of former adjudication was overruled, another trial had, and a decree entered substantially the same as before. We think the decree and proceedings in the first action are binding upon both parties, and that neither can thereafter maintain a new action, identically the same in all respects, for the purpose of accomplishing the same purpose. Persons may not be annoyed and harassed by repeated lawsuits, for the purpose of determining questions which have already been judicially determined in court.

The distinction drawn by counsel between pleas in bar and for the abatement of the suit does not seem to be important in this case. The object of the answer of the plaintiff in error was merely to defeat the new action of partition, and was not intended to affect the first suit, and we do not think it should have any effect beyond the abatement of the action in which it was filed.

The judgment of the district court is reversed, with instructions to carry out the view here expressed. All the Justices concurring.

(74 Kan. 771) CRAPSTER V. TAYLOR. (Supreme Court of Kansas. Dec. 8, 1906.) 1. INFANTS - INTEREST IN LAND JUDICIAL SALE.

An infant two months old cannot be divested of real estate, in which he owns the feesimple title, by a judicial proceeding to which he was not a party, of which he had no notice, and in which he was not represented by guardian or otherwise.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 27, Infants, $ 85.] 2. SAME--RECOVERY OF LAND-ACTION BY INFANT.

Lands sold under such a proceeding may be recovered in an action brought for that purpose, if the suit is commenced within two years after the infant owner reaches the age of majority.

(Syllabus by the Court.).

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