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(Supreme Court of Kansas. Nov. 10, 1906.) On rehearing. Affirmed.

For former opinion, see 85 Pac. 799.

Milton Brown, T. A. Noftzger, and C. C. Brown, for plaintiff in error. Fred Washbon and Dale & Amidon, for defendant in error.

PER CURIAM. In this case upon a first hearing the judgment of the trial court was affirmed. Thereafter a rehearing was asked upon the ground, among others, that due notice had not been given to the attorneys of the plaintiff in error of the setting of the

It was found that there had been a partial omission in this respect, and largely upon that account the petition for a rehearing was granted.

After giving full consideration to the arguments presented at the second hearing, the court is still of the opinion that the case was rightly decided, and the judgment is therefore affirmed.

(74 Kan. 805)


(Supreme Court of Kansas. Dec. 8, 1906.) HABEAS CORPUS-ASSAULT-EVIDENCE.

Evidence taken on a preliminary examination of petitioner on the charge of assaulting an officer who attempted to arrest him without a warrant examined, and held sufficient to justify holding the petitioner to the district court.

(Syllabus by the Court.)

Application of James Stilts for a writ of habeas corpus. Writ denied.

R. W. Turner and E. P. Hotchkiss, for petitioner. D. J. Coy and G. H. Bailey, for respondent.

PORTER, J. The petitioner was charged with a felonious assault in striking one Jacob Burger in the pit of the stomach with a deadly weapon commonly known as a "beer bottle," with intent to maim, wound, and kill. On his preliminary examination, he was held under bond to answer to the district court.

It is claimed that the evidence of the preliminary examination shows that no offense was committed. The facts leading up to the charge upon which the petitioner was held are as follows: During the evening of August 4, 1906, the petitioner had an altercation with Jacob Burger in front of the hotel in the town of Randall. Burger was the city marshal. The petitioner was drunk and disorderly. He used abusive and threatening language toward the marshal who made no attempt to arrest him at that time. He then challenged the marshal to go down to the railroad tracks, a distance of about 200 feet from the hotel. The challenge was accepted. When they got to the railroad they stopped.

The evidence of the marshal is that the petitioner drew his knife and the marshal left suddenly and went home for the purpose of procuring a revolver. Soon after, he returned up town in search of the petitioner. He deputized one of the bystanders to go with him for the purpose of assisting in arresting Stilts. He went to another house some blocks away and procured a revolver for himself, giving his own to the deputy. Inquiries were made for Stilts and they were told that he had gone toward the blacksmith shop. They went and hunted for him. After a little while they learned that he had started home, and they went to his home for the purpose of arresting him for the disturbance. It was about 11 o'clock in the evening and the petitioner was in his house. The marshal had no warrant. The testimony at the preliminary examination, so far as it concerns the assault and the circumstances leading up to it, consists mainly of the evidence given by the marshal. He testified that he sent the deputy to the back door and went himself to the front door and called to the 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 way; I am going to arrest you,' and he said, 'Don't come in.' Finally I pulled the screen door back and stepped up on the floor and started in, and just then he threw and hit me, and just then I shot." His testimony is that the petitioner threw a beer bottle at him, striking him in the pit of the stomach; that he then fired four shots from a revolver, one of the shots taking effect in the arm of Stilts, who then came out and gave himself up. The marshal took him to a physician, and, it appearing that his wound was serious, he was allowed to return home, and no further attempt was made to prosecute him for the disturbance on the street, but four days afterwards the marshal filed the complaint upon which the warrant for his arrest issued on the charge of assaulting the marshal and striking him with the beer bottle.

It is argued by the petitioner that the evidence conclusively shows that no offense was committed; that the attempted arrest was without authority of law for the reason that the peace had been restored; that the disorderly conduct of the petitioner had ceased, and he had gone to his own home and had the right, under the circumstances, to resist an arrest without a warrant. The state contends, on the other hand, that the evidence shows a disturbance of the peace and a following up by the officer for the purpose of an arrest so closely in point of time that it was all one transaction. "The arrest must be made at the time of the offense or immediately after its commission, or upon fresh pursuit, while the offender is fleeing from the scene of the crime." 2 A. & E. Enc. of Law, 876. The law is well settled, however, that where an officer attempts to make an arrest for a misdemeanor committed in his view,


after peace has been restored, the arrest is unlawful unless made with a warrant. "When a policeman, after having seen a breach of the peace or a misdemeanor committed, departs, and afterwards returns, he cannot arrest without warrant for such previous offense so committed in his view. shortness of the interval does not affect the question." Meyer v. Clark, 41 N. Y. Super. Ct. 107. See, also, 1 Chit. Cr. Law, 23; 2 Esp. Rep. 540; 1 East, P. C. 305; Reg. v. John Marsden, 11 Cox, C. C. 90; Regina v. Walker, 25 Eng. Law & Eq. 589. The evidence at a preliminary is not necessarily conclusive upon any point, and is generally sufficient to authorize a holding over if a probability appears that an offense has been committed.

Whether the petitioner is or is not guilty can best be determined from a full hearing of all the evidence, and we do not feel warranted under the circumstances in discharging him.

to recover a personal judgment against him upon the note and to foreclose the mortgage. He caused a summons to issue to John Oscar Wiren directed to the sheriff of Shawnee county, Kan., to be served, at the same time informing such sheriff that John Oscar Wiren was an inmate of the insane asylum located in Shawnee county. This summons was returned showing service by delivering a copy to John Oscar Wiren personally on October 5, 1900. Subsequently the plaintiff made application to the district court for the appointment of a guardian ad litem for John Oscar Wiren, upon the ground that he had been adjudged insane and was then an inmate of the insane asylum at Topeka. Upon this application the court appointed D. C. Bye guardian ad litem for John Oscar Wiren, who, after taking the guardian's oath, filed a general denial, and the cause was tried without other service. A personal judgment was rendered against Wiren and a decree foreclosing the

The writ will be denied. All the Justices mortgage was made. Under this judgment concurring.

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A judgment rendered against an insane person upon personal service made after he had been adjudged insane, and before a guardian has been appointed, is void, and should be set aside upon application made in the original action by the guardian of his person and estate.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 27, Insane Persons, § 182.]

(Syllabus by the Court.)

Error from District Court, Rawlins County; A. C. T. Geiger, Judge.

Application of C. A. Olson, guardian of John Oscar Wiren, to set aside a judgment against Wiren in favor of R. W. Marquis. Judgment for plaintiff, and defendant brings error. Affirmed.

Albert Hemming and Valentine, Godard & Valentine, for plaintiff in error. Fred Robertson and J. S. West, for defendant in error.

GREENE, J. This is a proceeding to reverse an order of the district court of Rawlins county setting aside a judgment formerly rendered in that court against John Oscar Wiren, in favor of R. W. Marquis. It appears that on August 30, 1889, John Oscar Wiren, a single man, gave his note in the sum of $200 to the Des Moines Loan & Trust Company, and also gave a mortgage upon certain real estate in Rawlins county to secure its payment. The plaintiff in error subsequently became the owner of the note and mortgage, and certain payments thereon being in default he commenced his action on February 28, 1900, in the district court of Rawlins county against John Oscar Wiren

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 March 6, 1905, the probate court of Rawlins county appointed O. A. Olson guardian of the person and estate of John Oscar Wiren, and on the same date the guardian filed his application in the district court of Rawlins county asking that the judgment theretofore rendered in the case of Marquis v. Wiren be set aside for the reason that the court had no jurisdiction of the defendant, Wiren, and the entire proceedings were void. The application was granted and the judgment was set aside. From this order, the plaintiff prosecutes error.

The only question to be determined is: Was the judgment rendered void for want of jurisdiction of the defendant, Wiren? There is but one way for a court to obtain jurisdiction of an insane person and that is by having the process served on his guardian. Section 3941 of the General Statutes of 1901 authorizes any person to institute proceedings in lunacy against one suspected of being insane, or incapable of managing his own affairs, and section 3945 requires the probate court, when it has been determined that such person is insane or incapable of managing his own affairs, to appoint a guardian of his person and property. Section 3958 provides that in all actions against an insane person the process must be served upon his guardian, and also makes it the duty of the guardian to prosecute and defend all actions instituted in behalf of or against such ward. These sections were in force at the time the original proceedings were had, but were repealed by chapter 299, p. 450, Laws of 1905, but no change was made which in any way affects the proceedings had upon which the original judgment was rendered. None of these provisions were observed in the attempt to bring Wiren

into court. The court, therefore, did not, Pac. 473, 33 Am. St. Rep. 370, and it was 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 from 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


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. Default 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 remaining 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

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 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 ownership 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.

(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.


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 question whether the trial court ruled correctly in holding a tax deed to be good against an attack made after it had been of record for five years. The only objection to the deed necessary to be considered is that it fails to show with certainty the day of the sale on which it is based. It covers five disconnected tracts. Its recitals are, in substance, that the county treasurer "on the 2d and 4th days of September, A. D. 1890," offered each of said tracts for sale as it was reached in its turn and sold it. It is, of course, impossible that a single tract should have been sold on different days, and this language can only be interpreted to mean that a part of the lots were sold on the 2d and the rest on the 4th. The tract here involved is the third on the list in the order in which they are numbered in the deed. There is nothing in any part of the instrument from which any inference can be drawn as to whether this particular tract was sold on the first day named or on the second. There is, therefore, a failure to show upon what day the sale was in fact made. If this omission is ordinarily fatal to a tax deed the one here involved cannot be saved by the consideration that it discloses that the 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 transaction shall be designated is not met by merely restricting the possible dates to two. Whether the interval between them is small or great cannot affect the matter. Is such omission fatal? The statute does not in terms require a tax deed to show the day of the sale. It does, however, provide that the deed must be substantially in a prescribed form, of which the following is a part (Gen. St. 1901, § 7676): "And whereas, the treasurer of said county did, on the day of A. D. -- *** at [an adjourned sale of] the sale begun and publicly held on the first Tuesday of May, A. D. —, expose at public sale * the real property above described and whereas, at * * * having the place aforesaid, A. B. offered to pay the sum of dollars and cents * * * the said property was stricken off to him at that price." This amounts to a requirement that the date of sale shall be stated unless it can be said that such date is not a material or substantial matter. It is true that the deed shows affirmatively that the land was offered in the course of the regular September sale, and sold more than three years before the deed was executed. It is, therefore, difficult to see how the failure to recite the exact date could have misled or in any way prejudiced the owner or any one interested in the land. In Haynes v. Heller, 12 Kan. 381, it is said in the syllabus that a tax deed "must show upon its face the time at which the property was sold, or it will be void," and in the opinion that "the time at which the sale is made is, of course, material," and that the deeds 87 P.-72


should "show the time of sale." These expressions, however, are employed arguendo. and the context suggests that they have especial reference to the necessity that the deed shall indicate that the sale was made at the time fixed by law-that is, under the present statute, during the period beginning with the first Monday of September-a requirement which, in this instance, is met by other recitals than that quoted. Nevertheless, the fact remains that the exact date of the sale of a particular tract marks an important point in the proceedings leading up to a tax deed; it is the time from which interest on the amount of delinquent tax is computed, and from which the right to redeem runs. In view of this consideration the implied requisition that the deed shall recite it must be deemed as mandatory as though expressly stated, and, by the principle followed in Gibson v. Kueffer, 69 Kan. 534, 77 Pac. 282, the failure to comply with such a requirement is fatal to the deed even upon an attack made after it has been of record for more than five years.

The judgment is reversed, and the cause remanded for further proceedings in accordance herewith. All the Justices concurring.

(74 Kan. 704)

GERDOM et al. v. DUREIN. (Supreme Court of Kansas. Dec. 8, 1906.) 1. APPEAL CASE-MADE - EXTENSION OF ΤΙΜΗ.

Under the provisions of section 5482, Gen. St. 1905, time to make and serve a case-made may be extended beyond ten days after entry of judgment, by an order to that effect in the journal entry of judgment, and, when so done. no other or further action is necessary prior to the expiration of the time so given. 2. JUDGMENT-RES JUDICATA.

Where, in an action of partition, a decree has been entered which fully determines the respective interests of the parties in the lands sought to be divided, and in pursuance of proper proceedings thereunder the court orders a sale of the property, such decree and proceedings are binding upon the parties, and neither can thereafter abandon the same and maintain another action in partition to accomplish the same purpose.

(Syllabus by the Court.)

Error from District Court, Shawnee County; A. W. Dana, Judge.

Action by Frank Durein against Anna Gerdom and others. Judgment for plaintiff, and defendants bring error. Reversed.

Quinton & Quinton, for plaintiffs in error. Hazen & Gaw and C. A. Magaw, for defendant in error.

GRAVES, J. The first question presented in this case is a motion to dismiss the petition in error, for the reason that the casemade was not settled and signed within the time prescribed by Acts 1905, p. 535, c. 320, § 3, being section 5482, Gen. St. 1905, which reads: "The case-made or a copy thereof shall, within ten days after the judg

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; 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 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 judg ment. 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. 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.

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