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14. EVIDENCE. The owner must prove that the company was bound to fence at the point where the animal killed got upon the track; and where there is nothing in the evidence to show that it did not go upon the depot grounds where the company was not required to fence, he may be nonsuited. Bremmer v. Green Bay, S. P. & N. R. Co., 20 N. W. Rep. 687; but see Smith v. Chicago, M. & St. P. R. Co., 15 N. W. Rep. 303. Proof that the railroad company failed to fence as required by law makes out a prima facie case of negligence. Union Pac. Ry. Co. v. High, 14 N. W. Rep. 547. The burden of proof is on the railroad company to establish the building of a good and sufficient fence, as the statute makes the proof of the fact of killing of cattle on the track prima facie evidence of negligence on the part of the company. Brentner v. Chicago, M. & St. P. Ry. Co., 23 N. W. Rep. 245. Evidence of condition of defective gate two or three days after the accident held not improper. Mackie v. Central Iowa R. Co., 6 N. W. Rep. 723. Where one of the issues in an action is whether a fence is sufficient to turn stock, it is error to permit witnesses, who show no other qualification than that they had seen the fence, to give to the jury their opinions as to the sufficiency of the fence to turn stock. Baltimore & O. R. Co. v. Schultz, 1 N. E. Rep. 324. Upon the question of whether the cattle-guards were proper and sufficient to complete the inclosure, and prevent domestic animals crossing the same, the opinions of witnesses are not admissible; Smead v. Lake Shore & M. S. R. Co., 24 N. W. Rep. 761; but when the facts relating to their construction and condition are shown, the jury are capable of forming a correct judgment regarding their sufficiency. St. Louis & S. F. Ry. Co. v. Ritz, 6 Pac. Rep. 533. In case of an accident by a railroad train running upon and injuring horses on the track, what was said by the engineer to the conductor of the train immediately after the accident, and after the train had stopped, and while they were examining to ascertain what mischief had been done, indicating where he first saw the horses on the track, there not appearing anything but the occurrence to cause or produce the statement, may be proved by the plaintiff as part of the res gesta. O'Connor v. Chicago, M. & St. P. R. Co., 6 N. W. Rep. 481. A printed copy of the Herd-Book, in which cattle are entered, and which is regarded by persons engaged in breeding cattle as a standard authority, is admissible in evidence, in an action for damages for cattle killed by a train, to show the breed of the cattle so killed. Kuhns v. Chicago, M. & St. P. R. Co., 22 N. W. Rep. 661.
15. DAMAGES. The measure of damages for injury to a domestic animal is usually its reduced value at the time, and it is error to admit evidence as to what the use of the animal would be worth during a certain period after the injury if it were sound, especially where no claim for the value of its services was made, and the owner sought to show that it was absolutely worthless. Davidson v. Michigan Cent. R. Co., 13 N. W. Rep. 804. Interest on the value of the property lost or destroyed may be properly included in the damages, (Varco v. Chicago, M. & St. P. Ry. Co., 13 N. W. Rep. 921;) but a plaintiff who recovers double damages for the killing of his stock by a railroad company is not entitled to interest on the amount of damages recovered, as a part of the verdict. Brentner v. Chicago, M. & St. P. Ry. Co., 23 N. W. Rep. 245. In an action by the owner of a crop to recover damages against a railway company for failing to construct and maintain proper and sufficient cattle-guards where its railroad passes through the inclosure in which the crop is growing, the plaintiff is entitled, not only to compensation for the crop actually destroyed, but also to reasonable compensation for the time and labor necessarily expended in any ordinary and reasonable effort to protect his crop, and to prevent further and additional damages thereto; but he ought not to be allowed compensation beyond the injury or loss that might have been occasioned had no such effort been made. St. Louis & S. F. Ry. Co. v. Ritz, 6 Pac. Rep. 533.
16. CONSTITUTIONALITY OF STATUTES. A statute authorizing double damages for stock killed by a railroad company is not unconstitutional. Mackie v. Central Iowa R. R., 6 N. W. Rep. 723. Chapter 193, Laws Wis. 1881, (Rev. St. 2 1810,) is not unconstitutional because it excludes contributory negligence as a defense to an action brought for damages occasioned to a person or animal by want of a fence. Quackenbush v. Wis-consin & M. R. Co., 22 N. W. Rep. 519. In the act of the legislature of Montana entitled "An act to provide for the payment of stock killed or injured by railroads," the clause, "the findings of such appraisers shall be taken and held to be conclusive evidence of the value and ownership of and the injury to such stock," prevents the railroad company from exercising its rights of appeal from the findings of the appraisers, thus depriving it of the right of trial by jury. Such a provision is in conflict with the constitution of the United States and therefore invalid. Graves v. Northern Pac. R. Co., 6 Pac. Rep. 16.
17. INJURIES TO CHILDREN. Statutes requiring railroads to fence their roads, and making them liable for damages in consequence of neglect to do so, impose no duty to fence as respects children, (Fitzgerald v. St. Paul, M. & M. Ry. Co., 13 N. W. Rep. 168; see Marcott v. Marquette, H. & O. R. Co., [Mich.,] 13 N. W. Řep. 374; Keyser v. Chicago & G. T. Ry. Co., 23 N. W. Rep. 311,) and they will not be liable for injuries to children by reason of the absence of fences alone, no other fault or negligence being charged. Walkenhauer v. Chicago, B. & Q. R. Co., 17 Fed. Rep. 136.
(34 Kan. 179)
KOTHMAN V. PREST, Sheriff, etc.
Filed October 9, 1885.
1. EXECUTION SALE-SPECIAL EXECUTION-COSTS-AMERCEMENT OF SHERIFF. Where a special execution or order of sale of real estate is placed in the hands of a sheriff by the party interested in its enforcement, and upon the execution there is indorsed, by mistake of the clerk issuing the same, certain costs taxed by him in the case, but which are no iien upon the premises, and are not to be paid out of the same, or the proceeds thereof, and after the issuance of the special execution the court has not retaxed the costs embraced in the execution or made any direction thereon, held, that the sheriff cannot be amerced at the instance of the party placing the execution in his hands for neglecting, or refusing, on demand, to pay over to him the costs collected under the writ from the sale of the real estate.
2. SAME-PAYMENT OF TAXES-AGREEMENT WITH PURCHASER.
Where a special execution or order of sale of real estate commands the sheriff executing the same to pay all legal taxes thereon, and a purchaser of the real estate sold by him enters into an agreement with the creditor of the judgment debtor, before the confirmation of the sale, that he will take up and pay all tax titles and certificates, and in pursuance of such agreement, the purchaser does buy the outstanding tax certificates on the land, and thereby redeems the same from taxes, held, that the sheriff has no authority, after the confirmation of the sale, to pay any part of said taxes; and if he does so, with full knowledge of all the foregoing facts, against the objections of the party interested in the enforcement of the execution, and against his offer to indemnify him, he may be amerced for neglecting and refusing, upon demand, to pay over the money so improperly paid out by him, together with damages and costs, under the provisions of section 472 of the Code.
Error from Leavenworth county.
On January 9, 1884, F. Kothman, one of the defendants in the action of E. H. Skaggs v. E. J. Myers and others, filed his motion to amerce John W. Prest, as sheriff of Leavenworth county, in this state, of which the following is a copy, omitting court and title:
"Now comes the defendant, F. Kothman, and moves the court to amerce and order John W. Prest, as sheriff of Leavenworth county, Kansas, to pay to said F. Kothman, or his attorney of record, the following sums of money, viz.:
"(1) The sum of $352.20 retained by the said sheriff out of the proceeds of the sale of the south-east quarter of section eighteen, (18,) township eight, (8,) of range twenty-two, (22,) in Leavenworth county, Kansas, sold by said sheriff on execution in this action, and the sale of which land so made was by this court duly confirmed and approved.
"That said sheriff claims to withhold said $352.20 to pay the costs in this action prior to the proceedings of F. Kothman in the supreme court on error, which costs are adjudged to be paid by E. H. Skaggs and Ewing M. Skaggs, which judgment for costs is in full force and unreversed.
"(2) The sum of $312.69, retained by said sheriff out of the proceeds of the sale of said lands to pay the amount claimed as taxes on said land for the years 1879, 1880, and 1881, which were sold to one F. A. Osborn, and a certificate of sale had been issued to said Osborn and by him assigned to Elise Bornhauser, the purchaser of said land at said sheriff's sale; after said sale, and the consideration of said assignment was less than the face value of said tax-sale certificates, and the accrued interest thereon; which sum of $312.69 was paid by said sheriff to the county treasurer of Leavenworth county, over the objection of said Kothman, and with the knowledge of said sheriff that said purchaser, Mrs. Bornhauser, had agreed to pay the taxes and pay the bid
of $3,225 for said land before said sale was confirmed. After which confirmation so procured, a motion was filed by said Bornhauser for an order of this court to direct said sheriff to pay said taxes so sold to Osborn, and which motion was overruled. After which said sheriff did pay said sum of $312.69 out of said proceeds to said county treasurer, and took a redemption certificate thereon for the years 1879, 1880, and 1881, over the objection and protest of said Kothman, which said sum of $312.69 was then paid by said county treasurer to said Elise Bornhauser, all of which was with the knowledge of said sheriff of the agreement of said Bornhauser, and over the objection of said Kothman.
"That demands for the payment to said Kothman of said sums of money have been made upon said sheriff, and payment by him refused. Wherefore, said F. Kothman asks that said sheriff be amerced and required to pay said sums, amounting to $664.89, with interest at 7 per cent. from January 7, 1884, and for the costs of this proceeding.
"H. T. GREEN, Attorney for F. Kothman."
The motion was heard at the December term of the court for 1883; and on January 12, 1884, after hearing the evidence and argument, the court took the matter under advisement, and at the April term of court for 1884, in accordance with the request of the parties that the court find the facts specifically, and state its conclusions of law thereon, made the following findings of fact:
(1) In 1874, F. Kothman obtained a judgment against J. J. Myers for about $10,700 and costs, and also an order to sell certain real estate which had been attached in that suit, and before a sale the said Meyers died, which was in 1875.
(2) After the death of J. J. Myers, and in 1875, E. II. Skaggs commenced a suit to foreclose a mortgage on and sell the same lands which had been attached by Kothman in his suit against J. J. Myers; Skaggs claiming some $14,000 on a note of J. J. Myers to him, secured by the mortgage to be fore- • closed. The widow and children of J. J. Myers, Herman Markson, administrator of the estate of J. J. Myers, deceased, and F. Kothman, were made defendants in this said suit of E. H. Skaggs v. E. J. Meyers and others. Some years after the commencement of this suit, some ten other persons were made parties defendant, and also Ewing M. Skaggs was made a party defendant, claiming to own the note and mortgage executed to his brother, E. I. Skaggs.
(3) On the thirtieth day of April, 1881, a judgment was rendered in this suit of Skaggs v. Myers and others that the Skaggs mortgage was fraudulent and void; that the judgment of F. Kothman v. J. J. Myers was no lien on said lands, and that the defendants in this suit recover their costs of the plaintiff, E. H. Skaggs, and the defendant Ewing M. Skaggs; and the clerk of this court then entered and taxed in the appearance docket in this case, No. 6,386, all the costs, amounting to $246.20, which had been adjudged to be paid by E. H. Skaggs and Ewing M. Skaggs.
(4) That F. Kothman presented a writ of error in this case to the supreme court, where the judgment against him was reversed in 1882 and reported in 29 Kan. 5, and on the mandate of the supreme court in this case on the sixteenth day of December, 1882, a judgment for $17,286.50 was rendered in favor of F. Kothman against A. Markson, as administrator of the estate of J. J. Myers, deceased, and the said real estate was ordered to be sold to satisfy Kothman's judgment, which judgment in favor of Kothman appears in Journal 22 of this court, at page 118, and is here referred to as part hereof; that said Markson, as administrator, presented a writ of error to the supreme
court, where said last judgment was affirmed, and is reported in 29 Kan. 718. (5) That on the thirtieth day of December, 1882, said F. Kothman filed his præcipe for an execution and order of sale under said judgment of December 16, 1882, a copy of which is as follows:
"PRÆCIPE FOR EXECUTION.
"The State of Kansas, Leavenworth County--ss.: In the district court of the First judicial district of the state of Kansas, sitting in the county of Leavenworth, in said state.
"E. H. Skaggs, Plaintiff, vs. E. J. Myers, F. Kothman, and others, Defendants. (No. 6,386.)
"The clerk of the above-named court will please issue a special execution to sell the property ordered sold in the above-entitled cause, directed to the sheriff of Leavenworth county, Kansas, to execute according to law.
"Indorsed: No. 6,386. worth county, Kansas.
"H. T. GREEN, Attorney for F. Kothman. Præcipe for execution. District court of LeavenSkaggs v. Myers. Filed December 30, 1882. "McCown HUNT, Clerk."
-And upon which the clerk of this court issued an execution, which is numbered 4,768, and is here referred to as part hereof.
(6) That said execution came to the hands of J. W. Prest, as sheriff of Leavenworth county, Kansas, and was by his deputy-sheriff, D. J. Keller, executed; and, among other lands sold, the S. E. 4 of section 18, in township 8, of range 22, was at his sheriff's sale bid off to Elise Bornhauser for the sum of $3,225, on the tenth day of February, 1883, and the bid was paid to said deputy-sheriff; that costs to the amount of $367.35 were indorsed on said execution, and the sheriff ordered by said writ to pay said costs.
(7) That out of said purchase money, said deputy paid to the county treasurer on the twelfth day of February, 1883, the sum of $162.10, which was the amount of all the taxes held and owned by the county of Leavenworth on said lands, and made his return as sheriff on said execution on the twenty• eighth day of February, 1883. Said return is here referred to as part hereof. (8) That on the tenth day of April, 1883, said Elise Bornhauser, the bidder at said sale, purchased from F. A. Osborn, through Jacob Gayher, the tax titles and tax-sale certificates outstanding on said land for the sum of $1,550, which sum is less than the face of the taxes, with penalties and interest, by $67.28, which deduction was made by said Osborn because of supposed illegal and excessive taxes, and the tax-sale certificates on said land for the years 1879, 1880, and 1881, were assigned by said Osborn to said Elise Bornhauser. (9) That on the twelfth day of May, 1883, said Elise Bornhauser, by her motion, obtained an order confirming said sale to her, which order appears on Journal 22, pp. 330, 331, and is here referred to as part hereof.
(10) That on the nineteenth day of May, 1883, the motion of said Elise Bornhauser for an order on said sheriff to pay the taxes for 1879, 1880, and 1881 on said land was heard, and overruled by the court, as shown by Journal 22, p. 371, and which is here referred to as part of this finding.
(11) That on the twenty-first day of May, 1883, said sheriff, over the objection of said Kothman, by his attorney, and his offer to indemnify said sheriff, paid out of the purchase money of the S. E. of section 18, range 22, the sum of $312.69 to the treasurer of Leavenworth county for the taxes of 1879, 1880, and 1881 on said land, and took out redemption certificates therefor, and said sheriff then knew that the tax-sale certificates for those taxes belonged to said Elise Bornhauser; that soon after said sheriff had redeemed said tax-sale certificates the county treasurer paid said redemption money to Elise Bornhauser, who, before the confirmation of the sheriff's sale to her, had sold said land to Wendelind Hund for $5,500, and said Elise Bornhauser
had agreed with the attorney for Kothman, before the confirmation of the sale to her, that she would pay off the outstanding tax titles and taxes, as well as her bid of $3,225, which $3,225 should be for the interest of the Myers estate alone; and said sheriff then knew of said agreement in regard to said bid. (12) That after said purchase money was used by said sheriff to redeem said tax-sale certificates, and on the second day of June, 1883, said sheriff made an additional return on said writ, which is referred to as part hereof. (13) That on the second day of June, 1883, said sheriff procured an order of this court ratifying his acts in paying said tax-sale certificates, as appears in Journal 22, p. 379, and which is referred to as a part of this finding.
(14) That of the proceeds of said south-east quarter said sheriff has paid to the attorney for Kothman the sum of $2,291.50; that he has retained his costs on said execution, $91.55, and paid to the treasurer of Leavenworth county $162.10 for taxes held by said county, and has paid said $312.69 for redeeming said tax-sale certificates, and also retains the sum of $367.35, the costs indorsed on said execution; that of the said $367.35, the sum of $106.00 is the costs of the original judgment of Kothman v. J. J. Myers, and said sum of $106.00 was included in the judgment of Kothman for $17,286.50; that of said $367.35 the sum of $246.20 is for the costs of this action incurred up to the thirtieth day of April, 1881, the time of the rendition of the judgment against E. H. Skaggs and E. M. Skaggs for costs, and that of said $367.35 the sum of $15.15 is for costs incurred subsequent to the rendition of said judgment against E. H. Skaggs and E. M. Skaggs.
(15) That since said sheriff has retained $367.35, said Kothman has demanded of said sheriff that he pay to said Kothman, or his attorney, said sum of $106.00, the costs in Kothman v. J. J. Myers, and the sum of $246.20, the amount of costs in this action up to and including the rendition of the judg ment against E. H. Skaggs and E. M. Skaggs, and has also demanded of said sheriff said sum of $312.69 so paid by said sheriff for the redemption of said tax-sale certificates; that said sheriff has offered to pay the clerk the costs subsequent to April 30, 1881, but the clerk refused to receive the same unless the sheriff would pay him the entire sum of $367.35.
(16) That said Kothman, after the refusal of said sheriff, Prest, to pay him said sums of $312.69 and $352.20, filed his motion on January 9, 1884, to amerce said sheriff and gave him notice as required by law, which motion to amerce is referred to as a part of this finding.
And thereon the court made the following conclusions of law:
(1) That said sheriff was not bound to follow the outside agreements of parties interested, but must obey the writ in his hands to be executed. (2) The motion to amerce should be overruled, at the costs of Kothman.
Judgment was then rendered overruling the motion, and that John W. Prest recover all costs from Kothman. Kothman filed his motion to vacate and set aside the findings and judgment of the court, and for a new trial. This was overruled. Kothman excepted to the rul
ings and judgment of the court and brings the case here.
H. T. Green, for plaintiff in error.
H. W. Ide, for defendant in error.
HORTON, C. J. This was a proceeding in the district court of Leavenworth county by F. Kothman to amerce John W. Prest, sheriff of said county, for refusing and neglecting to pay, on demand, to the plaintiff in error $664.89, collected by him, with other moneys, upon a special execution or order of sale in an action tried in Leavenworth