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Frank Herald, for plaintiff in error. Quinton & Quinton, for defendant in
HORTON, C. J. All of the alleged errors in this case are trivial and unimportant. If the motion for additional security for costs ought to have been allowed, this is not a sufficient ground for a reversal of the judgment, as it appears the plaintiff below was successful upon his claim against the defendant below, the party making the motion. The officers interested in the costs seem to be satisfied with the action of the court in overruling the motion for other security. As the defendant is liable for all the costs included in the judgment rendered against him, he is in no condition to make any complaint; nor have any of his rights been prejudiced by the ruling. The lease was properly introduced in evidence, and there was no material error in the introduction of the renewals entered thereon, because, although the defendant in the court below had no knowledge of such renewals, as long as he retained possession or control of the premises, he must be considered to have held under the lease.
Legrand Byington had the right to sell and transfer the written lease to his son Seymour L. Byington, although he was a minor.
The written statement made by Legrand Byington in 1873, and the letter of Bradford Miller of February 3, 1873, were improperly admitted in evidence; but these errors are immaterial, as both Byington and Miller testified of their own recollection of the amounts severally stated by them. Byington figured up the amount of rent due from Wilcox from 1868 up to 1875. Miller testified that the amounts mentioned in his letter were paid by him for rent to Wilcox. The case was submitted to the court without a jury, and therefore the introduction of these immaterial papers were less likely to cause any prejudice.
The refusal of the court to state its findings of fact in writing was not, under the circumstances of this case, error. Judgment was rendered March 30, 1885. The motion for a new trial was filed the same day, but not argued until April 25, 1885. On that day the motion was overruled. The defendant below never made any request to the court to state its conclusions of fact and of law until after this motion had been overruled. Then it was too late. The request should have been made before the court announced its findings. It is the general rule of practice for the parties to request the court, either just before or at the close of the argument made in the case, to state its findings in writing. Clearly, the request should be made before the final decision of the court. We do not think the statute contemplates that a party to an action may wait until the trial is ended, the final judgment rendered, and his motion for a new trial overruled, before intimating to the court he desires the conclusions of fact and of law stated in writing. Section 290, Civil Code; Green v. Williams, 21 Kan. 68. In this case the trial court undoubtedly would have found specially, and would have stated in writing all of its findings, if the slightest intimation had been given before the final decision that such a thing was desired.
The claim that the action was barred by the statute of limitations is not tenable. The lease was sold and assigned by Legrand Byington to Seymour L. Byington on November 23, 1870. Seymour L. Byington was then a minor, and he commenced this action on December 17, 1883, within one year after he became of age. Section 17 of the Civil Code.
An examination of the evidence and judgment does not satisfy us that the assessment of the amount recovered is too large.
The omission of the clerk of the court to include the amount of the costs in the judgment as recorded is not a ground for setting the same aside. “The judgment will certainly authorize a correct taxation of the costs. If, however, the clerk should tax them erroneously, the court below will undoubtedly correct the taxation on motion." Linton v. Housh, 4 Kan. 536, 541; Clippenger v. Ingram, 17 Kan. 584.
The judgment of the district court will be atfirmed. (All the justices concurring.)
(36 Kan. 177)
NUZMAN and another 0. SCHOOLEY.
(Supreme Court of Kansas. February 4, 1887.) EXECUTION-EXEMPTION_"Two Cows"-HEAD or FAMILY-COMP. Laws Kan. 1879, Ch.
Under the fifth clause of section 3, c. 38, Comp. Laws Kan. 1879, which exempts “two coWS,
a person residing in this state, and being the head of a family, may claim as exempt two cows which he owns, although the cows are not actually used by him or his family, and although the cows are not necessary for the support of
himself or his family. (Syllabus by the Court.)
Error to district court, Jackson county.
Hoaglin & Crawford, for Nuzman and another, plaintiffs in error. Keller & Noble, for Schooley, defendant in error.
HORTON, C. J. Just prior to March 14, 1885, F. C. and Lewis Nuizman commenced an action before Thomas BELL, a justice of the peace of Jackson county, and in this action two cows belonging to James Schouley were seized under an order of attachment issued by the justice. On March 14, 1885, the justice issued an order to sell the cows, returnable within 30 days. On March 19, 1885, James Schooley commenced his action before E. D. Rose, a justice of the peace of Jackson county, to recover the possession of the cows, upon the ground that they were exempt from seizure and sale upon attachment, execution, or other process. In this action he recovered judgment, the court holding the cows exempt. This is the error complained of. After the cows were seized upon attachment, Schooley appeareil before the justice issuing the order, and gave notice that he claimed the cows as exempt. The justice said to him that he would receive any evidence, by affidavit, upon the matter, but no affidavit or other evidence was presented. It is now urged that by refusing to comply with the request of the justice Schooley acquiesced in his decision and judgment, and, therefore, that the whole matter was res adjudicata. This is not so. In Watson V. Jackson, 24 Kan. 442, it was held that “the decision of a motion made before a justice of the peace, to discharge from seizure property taken on attachment, on the ground that it is exempt, is not conclusive; and the question of exemption may be tried thereafter in an action of replevin brought by the judgment debtor.” It is next urged that the cows are not exempt because it does not appear from the record that they were used by, or were necessary for the support of, Schooley or his family at the time of the seizure. The statute reads: “Every person residing in this state, and being the head of a family, shall have exempt from seizure and sale upon any attachment, execution, or other process issued from any court in this state, the following articles of personal property: * * (5) Two cows, ten hogs, one yoke of oxen, and one horse or mule; or, in lieu of one yoke of oxen and one horse or mule, a span of horses or mules, twenty sheep and the wool from the same, either in the raw material, or manufactured into yarn or cloth.” Section 3, c. 38, Comp. Laws 1879. This section makes the articles therein named exempt, absolutely; and therefore the articles so named cannot be confined to such as the debtor is in the actual possession of, or such as are actually necessary for the support of himself or his family. The statute must be construed beneficially to the debtor. Mallory v. Berry, 16 Kan. 293.
The case comes to this court upon the findings of fact of the trial court, without the evidence; and all the terms of the lease under which one Speck holds the cows are not before us for our consideration. The findings show
that Schooley is the owner of the cows, and that they are the cows he had at the commencement of this action, and that the Nuzmans are trying to seize and sell his interest therein; therefore we think he is sufficiently a party in interest to maintain this action. Even if Schooley had 18 or 20 head of cattle just prior to the commencement of this action, he had the right to claim as exempt the particular animals in dispute. The election of what animals he would claim as exempt was with him, and not the creditor.' “Where the debtor has a greater number of animals or articles than are enumerated as exempt, or where he has property which exceeds in value the limit of the exemption, the selection should be made before the sale; but our law does not prescribe when or by whom it shall be made. In view of the fact that the statute is enacted mainly for the benefit of the debtor and his family, it appears to us that the debtor should be accorded the privilege of making the selection at any time before the sale.” Rice v. Nolan, 33 Kan. 28; S. C. 5 Pac. Rep. 437.
The judgment of the district court will be affirmed. (All the justices concurring.)
(36 Kan. 202)
STRUBER '0. ROHLFS.
(Supreme Court of Kansas. February 4, 1887.) 1. APPEAL-JUSTICE OF THE PEACE-RECORD--RENDITION OF JUDGMENT.
Where a party appeals from the judgment of a justice of the peace, the record of the case transmitted to the clerk of the district court by the justice must attirmatively show that the appeal was taken within 10 days from the rendition of the
judgment; otherwise the district court may, on motion, dismiss the appeal. 2. SamE-NEGLIGENCE OF JUSTICE.
If the party appealing does all the law requires of him to entitle himself to an appeal, the justice cannot deprive him of this right by an omission to act, either
through negligence or design. 3. SAME-MISTAKE IN RECORD.
Where facts material to appear in the record of a justice of the peace are untruthfully stated therein, they cannot be corrected or disposed of in a summary manner
in the district court by affidavits upon a motion to dismiss the appeal. (Syllabus by the Court.)
Error to district court, Washington county.
A. S. Wilson and A. M. Hallowell, for Struber, plaintiff in error. Lowe & Smith, for Rohlfs, defendant in error.
HORTON, C. J. The facts in this case are substantially as follows: On July 18, 1884, George Rohlfs filed his bill of particulars against Henry Struber, before a justice of the peace of Washington county; on July 23d the summons issued, returnable July 28th, at 10 o'clock A. M. Service of summons was made by leaving a copy of the same, with all the indorsements thereon, at the usual place of residence of the defendant. Struber and his family, however, were absent at the time. On the return-day, the plaintiff appeared, with his attorneys; but the defendant made default. After hearing the evidence of the witnesses, the court rendered judgment in favor of Rohlfs, against Struber, for $247.25, together with costs. The defendant filed an appeal-bond, which was approved in writing by the justice, on August 8, 1884. After the case reached the district court, Rohlfs filed his motion to dismiss the appeal, upon the ground that the bond had not been approved and filed in time. Struber alleged he had no actual knowledge that he had been sued by Rohlfs, or that any judgment had been rendered against him, until August 7, 1884, the last day upon which an appeal could be taken; that be immediately prepared his appeal-bond, and, as soon as possible, went to the office and house of the justice, to present his bond and have the same approved; that upon his arrival at the house of the justice, about 11 o'clock of the night of August 7th, he was found to be absent, attending a dance then going on; that he went in pursuit of the justice and found him, near midnight, two miles from his residence; that he then presented his bond, signed by the sureties, and that the justice accepted the same.
The sole question for our consideration is whether the trial court erred in dismissing the appeal. The statute provides that “the party appealing shall, within ten days from rendition of the judgment, enter into an undertaking to the adverse party, with at least one good and sufficient surety, to be approved by such justice, in a sum not less than fifty dollars in any case, nor less than double the amount of the judgment and costs, conditioned-- First, that the appellant will prosecute his appeal to effect, and without unnecessary delay; second, that if judgment be rendered against him on the appeal, he will satisfy such judgment and costs. Such undertaking need not be signed by the appellant.” Section 121, c. 81, Comp. Laws 1879. The statute further provides that an appeal shall be completed upon the filing and approval of the undertaking. Section 188 requires every justice of the peace to keep a book, denominated a docket, in which must be entered by him, is an appeal be taken, the undertaking, and the time of entering into the same, and by which party taken. The certified transcript which the justice transmits to the clerk of the district court, with the papers in the cause, should affirmatively show the appeal has been taken within 10 days from the rendition of the judgment; otherwise, upon motion of the appellee, the court may properly dismiss the appeal. Unless the undertaking is presented for approval at the office of the justice, or to the justice himself, within 10 days from the judgment, the district court commits no error in dismissing the appeal, if a motion be made therefor. There is nothing in the transcript of the justice of the peace, in this case, which shows the appeal was taken in time. If there are any facts material to appear in a transcript or record of the justice which are untruthfully stated therein, they cannot be corrected or disposed of in the district court in a summary manner upon aflidavits. It is claimed, however, that the justice has failed to enter on his docket matters required to be of record, and therefore that these omissions may be supplied by atlidavits. If the justice has sent up an incomplete transcript, a diminution of the record might have been suggested; and then, perhaps, upon an amended transcript, all the facts relating to the presentation, approval, and filing of the undertaking would have appeared. If Struber presented his bond, with sufficient sureties, at the office of the justice on August 7, 1884, during business hours, or if the justice accepted and verbally approved the undertaking at any time on August 7th, the appeal would be in time, although the filing and written approval by the justice were not entered until the next day, as a justice cannot deprive a party of his right to appeal by an omission to act, either through negligence or design. The omission of a justice to enter his written approval upon an undertaking at the date he accepts the same, or his failure to file the undertaking at the date of its approval, will not deprive a party of his appeal.
If the transcript and records of the justice show that an appeal is not taken in time, and the statements therein are untrue, a direct proceeding must be instituted to correct the record. The matter cannot be inquired into collaterally. In Iowa, the statute provides that “where an omission or mistake has been made by the justice in his docket entries, and that fact is made unquestionable, the circuit court may correct the mistake, or supply the omission, or direct the justice to do so. Section 3586, Code Iowa 1873. In this state we have no similar statute, and therefore the practice in Iowa is not permissible here.
The order and judgment of the district court will be affirmed. (All the justices concurring.)
(19 Nev. 384)
STATE ex rel. DRURY 0. HALLOCK. (No. 1,258.)
(Supreme Court of Nevada. February 1, 1887.) CONSTITUTIONAL LAW-TITLE OF STATUTES — Gen. St. Nev. & 2308, AMENDING Gen. St.
NEV. & 2300 -- SALARIES OF MEMBERS OF THE LEGISLATURE AND SUPREME COURT
St. Nev. 1885, 99, (Gen. St. & 2308,) approved March 12, 1885. entitled "An act to amend an act entitled 'An act reducing and regulating the salaries and compensation of certain state officers. justices of the supreme court, and attaches of the state government of Nevada,’approved February 21, 1881," and which purports to reduce the salaries of members of the legislature, is absolutely null and void, as being in contravention of Const. Nev. art. 4, § 17, requiring that each law shall embrace but one subject, which shall be briefly expressed in the title. Application for mandamus. H. F. Bartine, for relator. J.D. Torreyson, for respondent.
HAWLEY, J. Relator is a member of the assembly of this state. He seeks, by the writ of mandamis, to compel respondent, as state comptroller, to draw a warrant in his favor at the rate of eight dollars per day for each day of service, as provided in section 7 of “An act reducing and regulating the salaries and compensation of certain state oificers and attaches of the state government of Nevada," approved February 21, 1881. St. 1881, 43; Gen. St. $ 2300. Respondent refuses to issue any warrant to relator, except for “seven dollars per day for each day of service,” as provided in section 5 of “An act to amend an act entitled · An act reducing and regulating the salaries and compensation of certain state officers, justices of the supreme court, and attaches of the state government of Nevada,' approved February 21, 1881,” approved March 12, 1885. St. 1885, 99; Gen. St. 2308.
By a reference to the original act of 1881 it will be observed that certain state oflicers are named. The justices of the supreme court are not included or named therein. The legislature in 1885, after amending sections 1, 2, 3, 4, and 7 of the act of 1881, added a supplemental section reducing the salary of the justices of the supreme court, and injected the words “justices of the supreme court” into the title of the act of 1881 in such a manner that any person unacquainted with the facts would naturally suppose, upon examination of the amended act, that “justices of the supreme court” were included in the original act of 1881.
Is the amendatory act of 1885 constitutionai? The constitution provides in plain, positive, and mandatory terms that “each law enacted by the legislature shall embrace but one subject, and matter properly connected therewith, which subject shall be brietly expressed in the title; and no law shall be revised or amended by reference to its title only, but, in such case, the act as revised, or section as amended, shall be re-enacted and published at length,” Article 4, § 17.
In determinining the question whether the amendatory act of 1885 violates any of the provisions in this section of the constitution, it is deemed advisable to call attention to the fact that the legislature of 1881 passed “An act fixing the salaries of the justices of the supreme court of the state of Nevada, approved Febrnary 19, 1881. St. 1881, 43; Gen. St. 2291.
It therefore appears that the legislature deemed it proper and wise to legislate upon the subject of “fixing the salaries of the justices of the supreme court,” independent of the subject of “reducing and regulating the salaries and compensation of certain state officers and attaches of the state government." Does it not necessarily follow, from the facts already stated, that the attempt of the legislature in 1885 to amend the title of the act of 1881 by inserting therein an additional subject was in direct violation of the first clause of the section of the constitution above quoted? It may have been within the power of the legisture in 1881, as an original measure, to have adopted a title that would have