* manager. In no case shall warrants be issued | The act became a law February 17, 1917, and to exceed the balance in such fund. it was recognized that, as the election for Opportunities for public hearings on the making of the city budget shall be given during the two commissioners would occur April 3d, the new weeks preceding the submission of the estimates act could not be submitted in time for adopto the commission. The budget shall then be tion this year, if all the provisions of the printed in the city papers and a further public election laws were observed. In section 16, hearing given by the commission." therefore, the act provides that in any election called in the year 1917 for voting upon the adoption of the act the election should be held within 15 days of the filing of the petition, and candidates should be permitted to file their petitions within 10 days of the election. These provisions did not repeal the general laws applicable to elections under the commission form act, either impliedly or otherwise. The general law continued in force, except as the Legislature in its wisdom saw fit to provide in those cities where a petition asked for submission of the new law at the general election in April. The general election laws, not having been repealed, do not need to be revived; and for the same reason it was not necessary to set out in the new act the sections of the old law which were for the time being superseded. These restrictions were deemed by the Legislature to be sufficient, and since they are restrictions, the court has no power to strike down the law on the ground that the court might differ with the Legislature as to their sufficiency. Moreover, it must be remembered that all the restrictions on the power of cities in taxation, assessment, contracting debts, and borrowing money which are imposed by the laws in force when the act was adopted remain in full force and effect. The act now under consideration contemplates merely a modification of the commission form of government in those cities adopting its provisions. The governing board is controlled by the provisions of the laws already in force as to cities of a given class, subject only to the restrictions and limitations imposed by the new act. The commission or governing board enacts all ordinances of the city, retaining all the legislative functions as before; it levies the taxes, determines the policies, and decides generally what shall and shall not be done. It must, however, appoint a general manager, to whom the act gives power and authority to administer the business affairs of the city. The board decides what is to be done; the manager proceeds to do the thing in the way that seems best to him as the most effective and economical in the interests of the city. [4] The Legislature always has the power by the adoption of a later act to suspend the operation of an earlier one, and where two acts are in conflict, the later expression of the legislative will controls. Topeka v. McCabe, 79 Kan. 329, 99 Pac. 602; Hicks v. Davis, 97 Kan. 312, 318, 154 Pac. 1030; 26 A. & E. Ency. L. 761. [5] The civil service law has not the force of a constitutional provision; it may be repealed as to one class of cities and remain in effect in others. The Legislature of 1911 (chapter 95, § 6) suspended its operation in all cities of less than 30,000 population governed by commissions. In the act now under consideration the manager is given the option to require the appointment of a civil service commission or not as he sees fit. [2] The last of the numerous contentions to be considered is one which is not directed against the validity of the act, but which is based upon the alleged insufficiency of the petition asking for the submission to the voters of the new law. It calls for a construction of the provision in section 16 which requires the mayor to call the election upon the filing of a petition with the city clerk "signed by not less than twenty-five per cent. of the total number of legally qualified electors voting for mayor at the last preceding city election." The defendants' claim is that this means 25 per cent. of the same persons who actually voted for mayor two years be It is contended that the act is in conflict with other statutory requirements, especially the general election laws, which provide how pollbooks shall be used in registration. It appears that the registration books were closed ten days before the election, as provided by section 1069, General Statutes of 1915. Of course, they remained closed until after election, and if, as it is claimed, 1,500 voters were prevented from expressing their views upon the proposed adoption of the new law, they were disfranchised solely because of their neglect to register. It is said that the act conflicts with the primary law, more particularly sections 4175 and 4176 of the General Statutes of 1915, the former of which requires the city clerk to publish the names of candidates 45 days preceding the primary, and the latter providing for the filing of nomination papers not less than 40 days before the primary. In city elections fore. The certificate of the clerk attached to ⚫ under the commission form of government parties are not recognized, and the primary law provisions "for the organization and government of political parties" have no application. The city manager act leaves the general election laws as they were under the commission form in so far as practicable. the writ shows 12,580 votes cast for mayor at the election in 1915 and more than 3,812 duly registered voters signed the petition. As suggested by the plaintiff : "Unless the Legislature intended that the wishes of the voters of two years ago, many of whom may have moved elsewhere and some of whom may have died, should be ascertained, rather than the wishes of the present citizens and voters, the petition is valid, as 3,145 qualified signers are all that is required, while more than 3,812 actually petitioned." What the Legislature had in mind, of course, was one-fourth of the electors. If that percentage of the voters signed the petition, it was deemed sufficient to justify the submission of the question. Usually in similar statutory provisions the last census, or the number of votes cast for some particular office at the last election, is taken as the basis from which to calculate the required number of petitioners. In this case it was the number of legally qualified votes cast for mayor at the last election, without reference to the individuals who cast them. Any other construction seems unreasonable. the methods of service of notice of an attorney's lien, and the service of a written notice of such lien upon the attorneys of record for the adverse party is sufficient, following Noftzger v. Moffett, 63 Kan. 354, 65 Pac. 670. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 390-392.] 6. JUDGMENT 668(1), SS3(10) — RES ADJU DICATA-SETTING OFF JUDGMENTS. In certain prior litigation one of the defendants herein had recovered a judgment against the present plaintiff, and an attorney's lien had been properly served on the plaintiff, and subject to that lien the successful defendant in the prior case had assigned his judg ment to a bank's trustee as security for a bona tachment of this lien, and after the assignment fide indebtedness of long standing. After the atof the judgment, the plaintiff acquired by assignment a judgment against his judgment creditor and another, and commenced a proceeding opin-ed to him and against the attorneys holding the against the debtors under the judgment assignlien on the judgment against him and against the trustee holding that judgment. In this merits of the original judgments reconsidered, latter proceeding the plaintiff sought to have the which in effect meant to open them, and to set off the judgment he had acquired against two of the defendants against the judgment against himself, and to restrain the enforcement of the judgment against him. Held, that the former judgments were res judicata, that the judgment against him and the one he had acquired were not mutual, and that the contravening equities based on the prior assignment of the judgment against him and the attorney's lien thereon would not permit a set-off between the judg Notwithstanding the length of this ion, it must be said that the defendants with all their numerous objections to the act have not succeeded in raising in our minds the slightest doubt as to its validity. It follows that plaintiff is entitled to judgment, and the peremptory writ will be allowed. All the Justices concurring. (100 Kan. 294) ALEXANDER v. CLARKSON et al. (No. 20764.) * (Supreme Court of Kansas. April 7, 1917.) ments. (Syllabus by the Court.) 1. JUDGMENT 642-RES ADJUDICATA-FORMER LITIGATION. All matters involved in the litigation reported in Alexander v. Clarkson, 96 Kan. 174, 150 Pac. 576, are res judicata. [Ed. Note. For other cases, see Judgment, Cent. Dig. § 1156.] 2. JUDGMENT MENTS. 883(1)-SETTING OFF Judg Before one judgment can be set off against another judgment, there must be mutuality in those judgments and no contravening equities. [Ed. Note. For other cases, see Judgment, Cent. Dig. § 1669.] 3. GARNISHMENT 230 RIGHTS OF GARNISHEE-CLAIM AGAINST DEBTOR. Where a garnishment proceeding has been commenced by filing a petition, giving bond, and service of summons, but the garnishee makes no answer and issues are not joined, no judgment entered, and no execution issued, the garnishee acquires no claim against the debtor in such abortive garnishment proceeding by acquiring an assignment of a judgment against the debtor rendered in another action. [Ed. Note. For other cases, see ment, Cent. Dig. §§ 435-444.] [Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 1181, 1188, 1680, 1681.] Appeal from District Court, Cowley County. Action by M. Alexander against John Clarkson and others. Judgment for defendants, and plaintiff appeals. Affirmed. J. T. Lafferty, of Kansas City, Mo., and Hackney & Moore, of Winfield, for appellant. Jackson & Noble, of Winfield, for appellees. DAWSON, J. This case is the aftermath of prior litigation, a full summary of which is set forth in Alexander v. Clarkson, 96 Kan. 174, 150 Pac. 576. This prior litigation had two main aspects: One was an accounting suit between the plaintiff and some of the present defendants as his partners in the milling business, and the other was an action by the First National Bank of Winfield against those defendant partners, to recover on certain promissory notes evidencing cerGarnish-tain of the partnership indebtedness, and in which action the plaintiff, Alexander, had not been made a party defendant because of a private agreement between Alexander and the bank to that effect. In the partnership accounting case one of Alexander's partners, John Clarkson, obtained a judgment against him. The attorneys for Alexander's partners have a lien for their services on that judgment. In the bank's case a judgment was Section 484 of the General Statutes of 1915, amending section 395 of the General Statutes of entered against Alexander's partners, and 1901, is an enlargement, and not a restriction of that judgment has been assigned to AlexanFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 4. JUDGMENT ~841 — ASSIGNMENT CONSID ERATION. If a judgment is assigned as security for a bone fide antecedent indebtedness, the consider ation for such assignment is sufficient. [Ed. Note. For other cases, see Judgment, Cent. Dig. § 1537.] 5. ATTORNEY AND CLIENT TICE-STATUTE. 180-LIEN-No der. Subject to the attorney's lien in the entered therein, and are now res judicata. partnership case the judgment in favor of John Clarkson and against Alexander has been assigned to J. E. Jarvis, president of the Cowley County National Bank of Winfield, as trustee for his bank. The attorney's lien and the Jarvis assignment antedate the assignment to Alexander. After the appeals in the bank case and the partnership accounting case were disposed of in Alexander v. Clarkson, supra, decided July 10, 1915, the present action was commenced by the plaintiff against his former partners and their attorneys and the trustee to whom the judgment against plaintiff had been assigned. The petition rehearsed certain features of the earlier litigation, and narrated the plaintiff's situation as decreed by those judgments, and that the Supreme Court had refused to consider certain errors assigned in his appeal because the motion for a new trial was filed more than three days after the judgments were rendered, although filed within three days after the formal journal entry of judgment reciting the terms of the decree was approved by the trial court. The petition is cumbered to a considerable degree with what the plaintiff chooses to urge as the wrongs, hardships, and injustice to which he had been subjected as a result of the earlier litigation, and concludes with a prayer that the partnership accounts be recast, and that a new decree be entered therein, adjusting the partnership matters between the plaintiff and his defendant partners, and that he be given credit for the amount of the bank's judgment against the Clarksons, and assigned to him, and that the defendants be restrained from proceeding to enforce the collection of the judgment to which he was subjected in the partnership accounting suit. Issues were joined, and the trial court's judgment reads: "First. That as between the Cowley County National Bank and Alexander the equities in the case (are) with the bank. "Second. That as between the attorney's lien claim and Alexander, the equities were in favor of the attorney's lien. "Third. That the judgment rendered on the 6th day of March, 1914, and dated back to September 19, 1913, was res adjudicata as to all questions involved in this case." [1] The plaintiff appeals. With his alleged grievances touching the earlier and concluded chapters of the 10 years' litigious warfare between Alexander and the Clarksons and their creditors we have no present concern. Our only jurisdiction at present is to review the correctness of the judgment which we have just quoted. There are two important ends in view in every lawsuit: The first is that it be decided right; and the second, which is only less important than the first, is that it be decided. New v. Smith, 97 Kan. 580, 155 Pac. 1080. All the matters which were litigated between the parties in the partnership accounting suit and in the bank's case are concluded by the judgments Those judgments determined for all time the sum which Alexander must pay to Clarkson or his assignee, and what the Clarksons must pay the First National Bank or its assignee. It is no longer a matter of any concern that Alexander had a private agreement with the First National Bank, whereby the bank refrained from making him a defendant in its action against his partners to recover on the partnership notes, or that he and the bank official forgot or lied about that matter when the Clarksons sought to prove it, nor can the predicament in which Alexander now finds himself on account of that private agreement affect the rights of the parties as crystallized in the judgments in the earlier litigation. And it is no longer of any judicial consequence that Alexander's motion for a new trial in the earlier litigation was out of time. Those judgments, being final, cannot now be modified or disturbed. Let us then turn to the questions involved in this appeal. [2, 6] There is no objection to an equitable proceeding to set off one judgment against another unless intervening rights are prejudiced thereby. Hillis v. National Bank, 54 Kan. 421, 423, 38 Pac. 565; Railroad Co. v. Murray, 57 Kan. 697, 47 Pac. 835; 15 R. C. L. 820. But since the trustee of the Cowley County National Bank had secured an assignment of Clarkson's judgment against Alexander and it was also subjected to a timely lien before Alexander acquired the assignment of the First National Bank's judgment against Alexander, we see no way to set off these respective judgments against each other. In Schuler v. Collins, 63 Kan. 372, 374, 65 Pac. 662, 663, it is said: "The existence of mutual judgments does not entitle a party to have one set off against the other arbitrarily as a matter of right. Whether application for set-off is by motion or through a proceeding in equity, it is to be determined upon equitable considerations, and is only allowed when it will promote substantial justice. This was the ruling in Herman v. Miller, 17 Kan. 328, where it was said that: "The exercise and it will not be exercised in cases in which it of that power is, in a measure, discretionary, would be inequitable so to do.' See cases cited, and, also, Boyer v. Clark & McCandless, 3 Neb. 167: Lundberg v. Davidson, 68 Minn. 328, 71 N. W. 395, 72 N. W. 71; Pirie et al. v. Harkness, 3 S. D. 178, 52 N. W. 581; Hroch v. Aultman & Taylor Co., 3 S. D. 477, 54 N. W. 269; Bartlett v. Pearson, 29 Me. 9: Freem. Judg. 427-467; Black, Judg. §§ 954, 1000." Other decisions are to the same effect. Pheiffer, etc., v. Harris, 74 Ky. (11 Bush.) 400; Silver v. Krellman, 89 App. Div. 363, 85 N. Y. Supp. 945; Goldman v. Tobias (Sup.) 88 N. Y. Supp. 991; Elms v. Arn (Okl.) 158 Pac. 1150. See, also, a 12-page note on the subject of setting off one judgment against another in 109 Am. St. Rep. 137 et seq. In some jurisdictions the matter is regulated by statute. First Nat. Bank of Louis ville v. Krieger's Assignee, 89 S. W. 733, 28, eral finding of the trial court is against the Ky. Law Rep. 612. Sometimes it is held that plaintiff on his claim to any right found on where judgments are strictly mutual, an as- this abortive garnishment proceeding. signment is subject to the judgment debtor's Hutchinson v. Nelson, 63 Kan. 327, 65 Pac. right to set off another judgment, which he 670. has obtained against his judgment creditor (23 L. R. A. 335, note, 15 R. C. L. 823); but where the judgments are not mutual, the ordinary rule seems to be, and ought to be, that a bona fide assignee, especially where the element of priority is involved, is protected. In 15 R. C. L. 823, 824, it is said: The evidence shows that Jarvis holds the legal title to the Clarkson judgment against Alexander as trustee for his bank, which is, and for many years has been, a creditor of John Clarkson to the extent of $10,000, and that the indebtedness was originally incurred in furtherance of the defunct partnership "The setting off of one judgment against an- business. Indeed, at one time, as security other is not a legal right, but is a matter of for this indebtedness, Jarvis's bank had a grace, and the question whether a set-off should or should not be decreed rests in the sound lien on a mill the title to which stood in discretion of the court to which the application Clarkson's name, but the mill was subjected is made. * # *The action of a court of law to the satisfaction of the partnership debts in granting or refusing a set-off is governed by and sold as partnership property. Surely the principles of equity and justice, and allowed only where good conscience requires it. this was a sufficient consideration for the It will never be permitted when the effect would assignment, whether it was merely as sebe to deprive a party of his legal rights. Accurity for Clarkson's indebtedness or in cordingly, in the exercise of the power of set- diminution thereof, and it is certainly quite off, equitable rights of persons not parties to the suit may be considered and protected. Since obvious that the equities as between Jarvis good conscience is far from requiring that an and Alexander are with Jarvis as found by attorney's claim for services in securing the the trial court. judgment should yield to the claim of those holding rights adverse to his clients, it is a general rule that a judgment creditor cannot defeat the attorney's lien, even by giving the attorney notice of an intended set-off." sons. It is next urged that the attorney's lien on the Clarkson judgment against Alexander is invalid because the service of notice was insufficient. The assignee of this judgment The judgments here sought to be set off might raise this question, but Alexander's against each other are not mutual between only concern therewith is to be on his guard Alexander and the Clarksons. They were against paying the judgment without connever coexistent cross-demands in the hands sidering the attorney's lien thereon. If Alexof Alexander and Clarkson. One is a judg- ander should pay the judgment in full rement in favor of John Clarkson against Alex-gardless of this notice, and the attorneys ander. The other is a judgment in favor of having the lien should seek to hold him therethe First National Bank against the Clark-on-to make him pay a second time on acClarkson has parted with his interest in his judgment. The bank has parted with its interest in its judgment. There was no mutuality in these judgments when rendered. There is certainly none now. The rights of third parties attached before this proceeding to set off was begun, and before the present cause of action-the acquisition of the bank's judgment by Alexander-arose. [3] We discern nothing tangible in plaintiff's claim under a garnishment proceeding commenced by the First National Bank to garnishee Clarkson's claim against Alexander. The record does not disclose that issues were ever joined in that proceeding, nor any judgment entered therein. Counsel for defendants assert that the garnishment proceeding was abandoned, and plaintiff's petition in this action infers the same, where he pleads: count of it-his present question as to the sufficiency of the notice would be all-important. This view, however, is not presented by counsel for defendants, and it may be proper to consider the question as present ed. The statute provides: "Such notice must be in writing, and may be served in the same manner as a summons, and upon any person, officer or agent upon whom a summons under the laws of this state may be served, and may also be served upon a regularly Stat. 1915, § 484. employed salaried attorney of the party." Gen. The written notice of the attorney's lien was served upon Alexander's attorneys of record in the action in which the judgment was rendered and in which the attorneys' services were performed. It was filed in court. Alexander knew about it. His counsel knew about it. All this was before Alexander procured an assignment of the judgment which he seeks to offset against the Clarkson judgment. In Noftzger v. Moffett, 63 Kan. 354, 65 Pac. 670, it is said that service of a written notice of an attorney's lien on the attorney of record for the adverse [4, 5] There being no answer, no issues party is sufficient. The new statute takes joined, no judgment by default or otherwise, nothing from the old (Gen. Stat. 1901, § 395), no execution in the garnishment proceeding, but adds that the notice must be in writing, we see no way to use it as an off-set to the and that it may be served as above provided. "That the plaintiff never filed any answer in garnishment in that bank case because he did not and could not know whether he was indebted to the said John Clarkson or not until the matters in controversy should thereafter be ascertained by the final determination of this court in said first-named equity action." The manner of service is not so important, If This disposes of the questions directly con cerned in the present case, and nothing ap proaching the gravity of reversible error can be discerned. We do not think it proper to extend this opinion by attempting to follow counsel for plaintiff through the wide range of their discussion of the merits or demerits of the antecedent litigation. The judgment is affirmed. All the Justices concurring. 100 Kan. 255) 4. MINES AND MINERALS 732-OIL AND and of another stake locating a place to set a Appeal from District Court, Butler County. Brennan, Kane & McCoy, of Bartlesville, Okl., and A. C. Malloy, of Hutchinson, for appellants. J. P. O'Meara, of Tulsa, Okl., for appellee. MARSHALL, J. The defendants appeal from a judgment enjoining them from operating under an oil and gas lease on land near Augusta, in Butler county. [1] 1. In his petition the plaintiff alleged that he was the owner and in the possession fendants, without right, were threatening of certain described land, upon which the deand about to enter with drilling tools and drillers, for the purpose of drilling for oil and gas, and of permanently appropriating the same to their own use. In their answer the defendants denied each HENNING v. WICHITA NATURAL GAS and all the allegations of the petition, denied CO. et al. (No. 20592.)* (Supreme Court of Kansas. (Syllabus by the Court.) that the plaintiff was the owner or in possession of the land described, and set up a April 7, 1917.) lengthy affirmative defense, a large part of which was stricken out on the motion of the plaintiff. Of this the defendants complain. All the facts set out in that part of the answer which was stricken out might have been proved under the remaining allegations; and evidence was introduced tending to prove these facts. For these reasons this complaint of the defendant is without sub 1. APPEAL AND ERROR ~1042(2) HARMLESS ERROR STRIKING ALLEGATIONS OF PETITION. A judgment will not be reversed because al legations are stricken out of a petition, where the evidence to prove those allegations was properly introduced under the remaining allegations. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4111.] 2. APPEAL AND ERROR_1046(3)—HARMLESS ERROR-BURDEN OF PRoof. Ordinarily a judgment will not be reversed because of error in placing the burden of proof in a trial by the court without a jury, where each party has ample opportunity to introduce evidence to support his contentions. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4130.] stantial merit. No reversible error was comImitted in striking out part of the answer. [2] 2. At the opening of the trial some discussion of the burden of proof was had by court and counsel. This discussion resulted in the court's directing the defendants to go ahead with their proof, and placing the burden of proof on them. The defendants insist that this was error. The trial was by the court without a jury. There is nothing in the abstract tending to show that the defendants were prevented from introducing any compeAn oil and gas lease provided: "It is agreed tent evidence tending to support their conthat should said Beck make a bona fide sale of said 160 acres before lessee commences opera- tentions. The defendants had ample opportions to drill on said land and refunds to lessee tunity to introduce all their evidence. The all money paid Beck, then lessee is to cancel this lease." 3. MINES AND MINERALS 73%-OIL AND GAS LEASE-SALE OF PROPERTY RIGHTS OF LESSEE. An absolute sale of the property was made. One of the purposes of the sale was to defeat the rights of the lessee. Held, that the lessee was deprived of its right to drill on the premises. since the sale was made before the lessee commenced operations to drill. [Ed. Note.-For other cases, see Mines and Minerals, Cent. Dig. § 200.] order in which that evidence was produced was not of very great importance. In Bank V. Brecheisen, 98 Kan. 193, 196, 157 Pac. 259, 260, this court said: "It is a modern tendency of courts to attach less importance to the phrase 'burden of proof than was formerly the case, in so far as it is supposed to relate to or affect the order in which the parties shall offer their evidence upon For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |
