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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 elecThese restrictions were deemed by the tion called in the year 1917 for voting upon Legislature to be sufficient, and since they the adoption of the act the election should are restrictions, the court has no power to be held within 15 days of the filing of the strike down the law on the ground that the petition, and candidates should be permitcourt might differ with the Legislature as to ted to file their petitions within 10 days of their sufficiency. Moreover, it must be re- the election. These provisions did not repeal membered that all the restrictions on the the general laws applicable to elections unpower of cities in taxation, assessment, con- der the commission form act, either impliedtracting debts, and borrowing money which ly or otherwise. The general law continued are imposed by the laws in force when the in force, except as the Legislature in its wisact was adopted remain in full force and dom saw fit to provide in those cities where effect. The act now under consideration con- a petition asked for submission of the new templates merely a modification of the com-law at the general election in April. The mission form of government in those cities general election laws, not having been readopting its provisions. The governing pealed, do not need to be revived; and for board is controlled by the provisions of the the same reason it was not necessary to set laws already in force as to cities of a giv- out in the new act the sections of the old en class, subject only to the restrictions and law which were for the time being superlimitations imposed by the new act. The seded. commission or governing board enacts all [4] The Legislature always has the power ordinances of the city, retaining all the leg- by the adoption of a later act to suspend the islative functions as before; it levies the operation of an earlier one, and where two taxes, determines the policies, and decides acts are in conflict, the later expression of generally what shall and shall not be done. the legislative will controls. Topeka v. McIt must, however, appoint a general mana- | Cabe, 79 Kan. 329, 99 Pac. 602; Hicks v. Dager, to whom the act gives power and author- vis, 97 Kan. 312, 318, 154 Pac. 1030; 26 A. & ity to administer the business affairs of the E. Ency. L. 761. city. The board decides what is to be done; [5] The civil service law has not the force the manager proceeds to do the thing in the of a constitutional provision; it ipay be reway that seems best to him as the most ef- pealed as to one class of cities and remain in fectire and economical in the interests of effect in others. The Legislature of 1911 the city.

(chapter 95, § 6) suspended its operation in It is contended that the act is in con- all cities of less than 30,000 population gordict with other statutory requirements, es- erned by commissions. In the act now under pecially the general election laws, which pro- consideration the manager is given the opvide how pollbooks shall be used in registration to require the appointment of a civil tion. It appears that the registration books service commission or not as he sees fit. were closed ten days before the election, as [2] The last of the numerous contentions prorided by section 1069, General Statutes of to be considered is one which is not directed 1915. Of course, they remained closed until against the validity of the act, but which is after election, and if, as it is claimed, 1,500 based upon the alleged insufficiency of the voters were prevented from expressing their petition asking for the submission to the views upon the proposed adoption of the voters of the new law. It calls for a connew law, they were disfranchised solely be-struction of the provision in section 16 which cause of their neglect to register. It is said | requires the mayor to call the election upon that the act conflicts with the primary law, the filing of a petition with the city clerk more particularly sections 4175 and 4176 of "signed by not less than twenty-five per cent. the General Statutes of 1915, the former of of the total number of legally qualified elecwhich requires the city clerk to publish the tors voting for mayor at the last preceding names of candidates 45 days preceding the city election.” The defendants' claim is that primary, and the latter providing for the file this means 25 per cent. of the same persons ing of nomination papers not less than 40 who actually voted for mayor two years bedays before the primary. In city elections fore. The certificate of the clerk attached to under the commission form of government the writ shows 12,580 votes cast for mayor parties are not recognized, and the primary at the election in 1915 and more than 3,812 law provisions "for the organization and duly registered voters signed the petition. gorernment of political parties” have no ap

As suggested by the plaintiff : plication. The city manager act leaves the wishes of the voters of two years ago, many of

"Unless the Legislature intended that the general election laws as they were under whom may have moved elsewhere and some of the commission form in so far as practicable. whom may have died, should be ascertained,

a

rather than the wishes of the present citizens | the methods of service of notice of an attorney's and voters, the petition is valid, as 3,145 qual lien, and the service of a written notice of such ified signers are all that is required, while more lien upon the attorneys of record for the adthan 3,812 actually petitioned.”

verse party is sufficient, following Noftzger v. What the Legislature had in mind, of Moffett, 63 Kan. 354, 65 Pac. 670.

[Ed. Note.-For other cases, see Attorney and course, was one-fourth of the electors. If

Client, Cent, Dig. 88 390-392.) that percentage of the voters signed the pe- 6. JUDGMENT EX668(1), 883(10) — RES ADJUtition, it was deemed sufficient to justify the

DICATA-SETTING OFF JUDGMENTS. submission of the question. Usually in sim In certain prior litigation one of the deilar statutory provisions the last census, or fendants herein had recovered judgment the number of votes cast for some particular against the present plaintiff, and an attorney's office at the last election, is taken as the ba- and subject to that lien the successful defend

lien had been properly served on the plaintiff, sis from which to calculate the required ant in the prior case had assigned his judgnumber of petitioners. In this case it was ment to a bank's trustee as security for a bona the number of legally qualified votes cast for tachment of this lien, and after the assignment

fide indebtedness of long standing. After the atmayor at the last election, without reference of the judgment, the plaintiff acquired by asto the individuals who cast them. Any other signment a judginent against his judgment credconstruction seems unreasonable.

itor and another, and commenced a proceeding Notwithstanding the length of this opin-ed to him and against the attorneys holding the

against the debtors under the judgment assignion, it must be said that the defendants with lien on the judgment against him and against all their numerous objections to the act have the trustee holding that judgment. In this not succeeded in raising in our minds the latter proceeding the plaintiff sought to have the

merits of the original judgments reconsidered, slightest doubt as to its validity.

which in effect meant to open them, and to set It follows that plaintiff is entitled to judg- off the judgment he had acquired against two of ment, and the peremptory writ will be al- the defendants against the judgment against himlowed. All the Justices concurring.

self, and to restrain the enforcement of the judg. ment against him. Held, that the former judg. ments were res judicata, that the judgment

against him and the one he had acquired were (100 Kan. 294)

not mutual, and that the contravening equities ALEXANDER v. CLARKSON et al. based on the prior assignment of the judgment (No. 20764.) *

against him and the attorney's lien thereon

would not permit a set-off between the judg(Supreme Court of Kansas. April 7, 1917.) ments.

[Ed. Note.-For other cases, see Judgment, (Syllabus by the Court.)

Cent. Dig. 88 1181, 1158, 1680, 1681.] 1. JUDGMENT Om 612_RES ADJUDICATA-FOR

Appeal from District Court, Cowley MER LITIGATION. All matters involved in the litigation re

County. ported in Alexander v. Clarkson, 96 Kan. 174, Action by M. Alexander against John 150 Pac, 576, are res judicata.

Clarkson and others. Judgment for defend[Ed. Note.-For other cases, see Judgment, ants, and plaintiff appeals. Affirmed. Cent, Dig. 8 1156.) 2. JUDGMENT Om883(1)-SETTING OFF JUDG

J. T. Lafferty, of Kansas City, Mo., and MENTS.

Hackney & Moore, of Winfield, for appellant. Before one judgment can be set off against Jackson & Noble, of Winfield, for appellees. another judgment, there must be mutuality. in those judgments and no contravening equities.

DAWSON, J. This case is the aftermath [Ed. Note.-For other cases, see Judgment, Cent. Dig. 8 1669.]

of prior litigation, a full summary of which 3. GARNISHMENT 230 Rights of Gar- is set forth in Alexander v. Clarkson, 96 Kan. NISHEE-CLAIM AGAINST DEBTOR.

174, 150 Pac. 576. This prior litigation had Where a garnishnient proceeding has been two main aspects: One was an accounting commenced by filing a petition, giving bond, and suit between the plaintiff and some of the service of summons, but the garnishee makes no answer and issues are not joined, no judg- present defendants as his partners in the ment entered, and no execution issued, the gar- milling business, and the other was an action nishee acquires no claim against the debtor in by the First National Bank of Winfield such abortive garnishment proceeding by acquiring an assignment of a judgment against against those defendant partners, to recover the debtor rendered in another action.

on certain promissory notes evidencing cer[Ed. Note.-For other cases, see Garnish- tain of the partnership indebtedness, and in ment, Cent. Dig. $$ 435-444.]

which action the plaintiff, Alexander, had 4. JUDGMENT O841 – ASSIGNMENT-CONSID- not been made a party defendant because of If a judgment is assigned as security for a

a private agreement between Alexander and bone fide antecedent indebtedness, the consider the bank to that effect. In the partnership ation for such assignment is sufficient.

accounting case one of Alexander's partners, [Ed. Note.--For other cases, see Judgment, John Clarkson, obtained a judgment against Cent. Dig. & 1537.]

him. The attorneys for Alexander's partners 5. ATTORNEY AND CLIENT Om180-LIEN-No- have a lien for their services on that judg. TICE-STATUTE.

ment. 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 AlexanOm For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*Rehearing denied May 18, 1917.

ERATION.

der. Subject to the attorney's lien in the entered therein, and are now res judicata. partnership case the judgment in favor of Those judgments determined for all time the John Clarkson and against Alexander has sum which Alexander must pay to Clarkbeen assigned to J. E. Jarvis, president of | son or his assignee, and what the Clarksons the Cowley County National Bank of Win- must pay the First National Bank or its asfield, as trustee for his bank. The attorney's signee. It is no longer a matter of any lien and the Jarvis assignment antedate the concern that Alexander had a private agreeassignment to Alexander.

ment with the First National Bank, whereby After the appeals in the bank case and the the bank refrained from making him a departnership accounting case were disposed of fendant in its action against his partners in Alexander v. Clarkson, supra, decided July to recover on the partnership notes, or that 10, 1915, the present action was commenced he and the bank official forgot or lied about by the plaintiff against his former partners that matter when the Clarksons sought to and their attorneys and the trustee to whom prove it, nor can the predicament in which the judgment against plaintiff had been as- Alexander now finds himself on account of signed. The petition rehearsed certain fea- that private agreement affect the rights of tures of the earlier litigation, and narrated the parties as crystallized in the judgments the plaintiff's situation as decreed by those in the earlier litigation. And it is no longer judgments, and that the Supreme Court had of any judicial consequence that Alexander's refused to consider certain errors assigned in motion for a new trial in the earlier litigahis appeal because the motion for a new triai tion was out of time. Those judgments, bewas filed more than three days after the ing final, cannot now be modified or disturbjudgments were rendered, although filed ed. within three days after the formal journal

Let us then turn to the questions involved entry of judgment reciting the terms of the in this appeal. decree was approved by the trial court. The

[2, 6] There is no objection to an equitable petition is cumbered to a considerable de proceeding to set off one judgment against gree with

what the plaintiff chooses another unless intervening rights are prejto urge as the wrongs, hardships, and in- udiced thereby. Hillis v. National Bank, 54. justice to which he had been subjected as a Kan. 421, 423, 38 Pac. 565; Railroad Co. v. result of the earlier litigation, and concludes Murray, 57 Kan. 697, 47 Pac. 835; 15 R. C. with a prayer that the partnership accounts L. 820. But since the trustee of the Cowley be recast, and that a new decree be entered County National Bank had secured an astherein, adjusting the partnership matters signment of Clarkson's judgment against between the plaintiff and his defendant part- Alexander and it was also subjected to a ners, and that he be given credit for the timely lien before Alexander acquired the amount of the bank's judgment against the assignment of the First National Bank's Clarksons, and assigned to him, and that the judgment against Alexander, we see no way defendants be restrained from proceeding to to set off these respective judgments against enforce the collection of the judgment to each other. In Schuler v. Collins, 63 Kan. which he was subjected in the partnership 372, 374, 65 Pac. 662, 663, it is said: accounting suit. Issues were joined, and the "The existence of mutual judgments does not trial court's judgment reads:

entitle a party to have one set off against the “First. That as between the Cowley County other arbitrarily as a matter of right. Whether National Bank and Alexander the equities in application for set-off is by motion or through the case (are) with the bank.

a proceeding in equity, it is to be determined "Second. That as between the attorney's lien upon equitable considerations, and is only alclaim and Alexander, the equities were in favor lowed when it will promote substantial justice. of the attorney's lien.

This was the ruling in Herman v. Miller, 17 “Third. That the judgment rendered on the Kan. 328, where it was said that: “The exercise 6th day of March, *1914, and dated back to of that power is, in a measure, discretionary, September 19, 1913, was res adjudicata as to and it will not be exercised in cases in which it all questions involved in this case."

would be inequitable so to do.' See cases cited,

and, also, Boyer v. Clark & McCandless, 3 Neb. [1] The plaintiff appeals. With his alleg. 167: Lundberg v. Davidson. 68 Minn. 328, 71 ed grievances touching the earlier and con. N. W. 395, 72 N. W. 71; Pirie et al. v. Hark

ness, 3 S. D. 178, 52 Ñ. W, 581; Hroch v. cluded chapters of the 10 years' litigious Aultman & Taylor Co., 3 S. D. 477, 54 N. W. warfare between Alexander and the Clark- | 269; Bartlett v. Pearson, 29 Me. 9; Freem, sons and their creditors we have no present Judg. 427–467; Black, Judg. $8 954, 1000.” concern. Our only jurisdiction at present is Other decisions are to the same effect. to review the correctness of the judgment Pheiffer, etc., v. Harris, 74 Ky. (11 Bush.) which we have just quoted. There are two 400; Silver v. Krellman, 89 App. Div. 363, important ends in view in every lawsuit: 85 N. Y. Supp. 945; Goldman v. Tobias (Sup.) The first is that it be decided right; and the 88 N. Y. Supp. 991; Elms v. Arn (Okl.) 158 second, which is only less important than the Pac. 1150. first, is that it be decided. New v. Smith, See, also, a 12-page note on the subject of 97 Kan. 580, 155 Pac. 1080. All the matters setting off one judgment against another in which were litigated between the parties in 109 Am. St. Rep. 137 et seq. the partnership accounting suit and in the In some jurisdictions the matter is regnbank's case are concluded by the judgments lated by statute. First Nat. Bank of Louis

04 3+ is said.

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 The evidence shows that Jarvis holds the (23 L. R. A. 335, note, 15 R. C. L. 823); but legal title to the Clarkson judgment against where the judgments are not mutual, the or- Alexander as trustee for his bank, which is, dinary rule seems to be, and ought to be, that and for many years has been, a creditor of a bona fide assignee, especially where the John Clarkson to the extent of $10,000, and element of priority is involved, is protected. that the indebtedness was originally incurred In 15 R. C. L. 823, 824, it is said :

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 a

Y and sold as partnership property. the principles of equity and justice, and al

Surely lowed 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. Ac-curity

curity

for Clarkson's indehter

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 tbe 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 gen- It is next urged that the attorney's lien eral rule that a judgment creditor cannot de- on the Clarkson judgment against Alexander feat the attorney's lien, even by giving the attor is invalid because the service of notice was ney notice of an intended set-off.”

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 there the First National Bank against the Clark

on-to make him pay a second time on acsons. Clarkson has parted with his inter

count of it-his present question as to the est in his judgment. The bank has parted

sufficiency of the notice would be all-imwith its interest in its judgment. There was

portant. This view, however, is not presentno mutuality in these judgments when ren

ed by counsel for defendants, and it may be dered. There is certainly none now. The

proper to consider the question as present rights of third parties attached before this

ed. The statute provides: proceeding to set off was begun, and before

"Such notice must be in writing, and may be the present cause of action—the acquisition

served in the same manner as a summons, and of the bank's judgment by Alexander-arose. upon any person, officer or agent upon whom &

[3] We discern nothing tangible in plain summons under the laws of this state may be tiff's claim under a garnishment proceeding

served, and may also be served upon a regularly

employed salaried attorney of the party." Gen. commenced by the First National Bank to

Stat. 1915, $ 484. garnishee Clarkson's claim against Alexander. The record does not disclose that issues

The written notice of the attorney's lien ever joined in that proceeding. nor any was served upon Alexander's attorneys of judgment entered therein. Counsel for de- record in the action in which the judgment fendants assert that the garnishment pro was rendered and in which the attorneys' ceed

ng was abandoned, and plaintiff's peti- services were performed. It was filed in tion in this action infers the same, where he court. Alexander knew about it. His counpleads:

sel knew about it. All this was before Alex. "That the plaintiff never filed any answer in ander procured an assignment of the judggarnishment in that bank case because he did ment which he seeks to offset against the not and could not know whether he was indebt

to Clarkson judgment. In Noftzger v. Moffett, ed to the said John Clarkson or not until the matters in controversy should thereafter be as

63 Kan, 354, 65 Pac. 670, it is said that serycertained by the final determination of this ice of a written notice of an attorney's lien court in said first-named equity action."

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, ive see no way to use it as an off-set to the and that it may be served as above provided. judgment against Alexander; and the gen- That the notice be in writing is imperative.

we

The manner of service is not so important, . 4. MINES AND MINERALS C 7342-OIL AND the chief consideration being the fact of serv

Gas LEASE-DRILLING OPERATIONS. ice, that notice be brought home to the party and of another stake locating a place to set a

The driving of a stake locating a gas well adjudged to pay, and here there is no doubt boiler to drive drilling machinery does not conon that point. It seems that the Legislature stitute a commencement of operations to drill, intended that notice might be served upon under the provisions of the lease set out in the

third section of this syllabus. any regularly employed salaried attorney for

(Ed. Note.-For other cases, see Mines and the litigant, although the latter was not the minerals, Cent. Dig. $ 200.] attorney in the particular litigation. We feel

Appeal from District Court, Butler County. quite positive that the Legislature did not

Action by Walter Henning against the intend to limit, but to enlarge, the methods

Wichita Natural Gas Company and others. of giving notice. However, it seems clear Judgment for plaintiff, and defendants apthat only the assignee of the Clarkson judg

peal. Affirmed. ment can question the sufficiency of the seryice of the notice of the attorney's lien.

If

Brennan, Kane & McCoy, of Bartlesville, the lien should fail, the trustee of the Cow. Okl., and A. C. Malloy, of Hutchinson, for ley County National Bank would take the appellants. J. P. O'Meara, of Tulsa, Okl., for entire interest of the Clarkson judgment, and appellee. his right thereto is unassailable by Alexan

MARSHALL, J. The defendants appeal der. This disposes of the questions directly con

from a judgment enjoining them from operatcerned in the present case, and nothing ap ing under an oil and gas lease on land near

Augusta, in Butler county. proaching the gravity of reversible error can be discerned. We do not think it proper to

[1] 1. In his petition the plaintiff alleged extend this opinion by attempting to follow that he was the owner and in the possession counsel for plaintiff through the wide range

of certain described land, upon which the deof their discussion of the merits or demerits fendants, without right, were threatening

and about to enter with drilling tools and of the antecedent litigation.

The judgment is atfirmed. All the Justices drillers, for the purpose of drilling for oil concurring.

and gas, and of permanently appropriating

the same to their own use. 000 Kan. 255)

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.) *

that the plaintiff was the owner or in posses

sion of the land described, and set up a (Supreme Court of Kansas. April 7, 1917.) lengthy affirmative defense, a large part of

which was stricken out on the motion of the (Syllabus by the Court.)

plaintiff. Of this the defendants complain. 1. APPEAL AND ERROR C1042(2) HARM- All the facts set out in that part of the anLESS ERBOR STRIKING ALLEGATIONS OF PETITION.

swer which was stricken out might have A judgment will not be reversed because al been proved under the remaining allegalegations are stricken out of a petition, where tions; and evidence was introduced tending the evidence to prove those allegations was prop- to prove these facts. For these reasons this erly introduced under the remaining allegations.

[Ed. Note.--For other cases, see Appeal and complaint of the defendant is without subError, Cent. Dig. & 4111.]

stantiål merit. No reversible error was com2. APPEAL AND ERROR 1046(3)–HARMLESS

mitted in striking out part of the answer. ERROR-BURDEN OF PROOF.

[2] 2. At the opening of the trial some disOrdinarily a judgment will not be reversed cussion of the burden of proof was had by because of error in placing the burden of proof court and counsel. This discussion resulted in a trial by the court without a jury, where in the court's directing the defendants to go each party has ample opportunity to introduce evidence to support his contentions.

ahead with their proof, and placing the bur(Ed. Note.-- For other cases, see Appeal and den of proof on them. The defendants insist Error, Cent. Dig. $ 4130.]

that this was error. The trial was by the 3. MINES AND MINERALS Cm7342-OIL AND court without a jury. There is nothing in the GAS LEASE-SALE OF PROPERTY-RIGHTS OF abstract tending to show that the defendants LESSEE.

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 order in which that evidence was produced this lease.

An absolute sale of the property was made. , was not of very great importance. In Bank One of the purposes of the sale was to defeat v. Brecheisen, 98 Kan. 193, 196, 157 Pac. 259, the rights of the lessee. Held, that the lessee 260, this court said: was deprived of its right to drill on the prem It is a modern tendency of courts to attach ises. since the sale was made before the lessee less importance to the phrase "burden of proof commenced operations to drill.

than was formerly the case, in so far as it is [Ed. Note. For other cases, see Mines and supposed to relate to or affect the order in Minerals, Cent. Dig. $ 200.)

which the parties shall offer their evidence upon

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

• Rehearing denied May 18, 1917.

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