tion, suit or proceeding claims or opposes, sues or defends as guardian of any insane or incompetent person, or as the executor or administrator, heir, legatee or devisee of any deceased person, or as guardian, or assignee or grantee, directly or remotely, of such heir, legatee or devisee as to any statement by, or transaction with, such deceased, insane or incompetent person, or matter of fact whatever, which must have been equally within the knowledge of both the witness and such insane, incompetent or deceased person, unless such witness be called to testify thereto by such adverse party, so claiming or opposing, suing or defending in such action, suit or proceeding." This act may be more easily understood with respect to the case in hand by omitting a part of its language: "A party to any proceeding, when the adverse party claims or opposes heir, legatee or devisee of any deceased perJon, as to any statement by such deceased ⚫ person which must have been equally within the knowledge of the witness and such de

*

*

*

as

ceased person, unless such witness be called by such adverse party."

The

The petitioner was heir. The parties opposing were heirs, legatees, and devisees. statements were by the testator, and expressed an intention not to provide for the petitioner in his will, and were, in effect, favorable to his heirs named in the will, and anfavorable to the petitioner. Such intent was not equally within the knowledge of the witnesses and the deceased testator, it is true. But the witnesses belonged to the class of persons named by the statute as disqualified; and they appear to be within the reason of the rule of exclusion established by the statute, because they were testifying to statements of a deceased person made in their favor. There is no other means of showing what the testator did say, or of contradicting the witnesses. We are of opinion that there was no error in the ruling of the court in excluding the statements of the witnesses named above. We see no legitimate objection to the competency of the other witnesses called by the appellants, or to their testimony, because of irrelevancy or immateriality, or otherwise.

For the reasons stated, the decree of the court below is reversed, with costs, and that court is directed to grant a new trial.

MINER, J., and STREET, District Judge,

concur.

4 Kan. A. 341)

MURRAY v. BOHANNA. (Court of Appeals of Kansas, Southern Department, C. D. July 15, 1896.) APPEAL-DEFECT IN PARTIES-AMENDMENTDISMISSAL.

1. Where a joint judgment has been rendered fn the district court against several parties thereto, and only a part of those who are affected by such judgment bring the case to the

appellate court for review, and, more than one year after the rendition of the final judgment, file a motion to amend the petition in error so as to bring other parties before the court, held, that such motion should be denied.

2. Where a joint judgment against several defendants is brought to the appellate court for reversal, and the judgment is such that it cannot be reversed or modified without prejudicially affecting other defendants, who are not parties to the proceedings for review, the petition in error must be dismissed.

(Syllabus by the Court.)

Error from district court, Sumner county; James A. Ray, Judge.

Action by Harriet Bohanna against John A. Murray, Fannie C. Murray, and others. Judgment for plaintiff, and Fannie C. Murray and John A. Murray brought error. John A. Murray subsequently died, and the action was revived in the name of Fannie C. Murray, as administratrix. Dismissed.

Frank H. Foster and J. V. Abrahams, for plaintiff in error. W. W. Schwinn, for de fendant in error.

JOHNSON, P. J. This suit was commenced originally in the district court of Sumner county, Kan., by Harriet Bohanna, as plaintiff, against John A. Murray, Fannie C. Murray, C. Everest Elliott, Camilla Elliott, Mrs. W. J. Page, Thomas A. Page, the Showalter Mortgage Company, L. H. Everets & Co., J. D. Pattison, Frank D. Ireland, administrator of Dustan Adams, Arthur L. Keyes, Thomas J. Ross, and the Loan & Guaranty Company, on a certain promissory note for $1,100, given by John A. Murray and C. Everest Elliott to Harriet Gatliff, on the 20th day of August, 1887, and asked for judgment for $1,100, with interest thereon, and the foreclosure of a mortgage given by said Murray and wife and Elliott and wife to secure the payment of said note, and for the foreclosure of said mortgage against the interest of all other parties named as defendants in said suit. The plaintiff below alleged in her petition that, at the time of the execution and delivery of the note and mortgage, she was the wife of one J. B. Gatliff, and afterwards the bonds of matrimony were dissolved by decree of the district court of Sumner county, Kan., and a divorce granted to her, and that, by the decree of said divorce proceedings, she was restored to her former name, Harriet Bohanna; that the note sued on was given by said defendants John A. Murray and C. Everest Elliott to Harriet Gatliff, and she has been, and now is, the lawful owner and holder thereof. John A. Murray and Fannie C. Murray, on the 28th day of January, 1890, filed their separate answer in said cause, containing a general denial, and allege that said Harriet Bohanna was not the owner and holder of said note, and denied that she was the real party interested in said cause. The defendants C. Everest Elliott and Camilla Elliott filed their separate answers in said cause, containing a general denial, and allege that, since the execution of the note set out in plaintiff's petition

said defendants Elliott and Elliott had conveyed to their co-defendant John A. Murray their interest in the premises covered by the mortgage given to secure the payment of said note, and, at the time of executing the conveyance, John A. Murray agreed and assumed to pay the note and mortgage given to Harriet Gatliff. Harriet Bohanna filed replies to the separate answers of Murray and Murray, and of Elliott and Elliott. The other defendants made no appearance and filed no answers in said action. The case was tried on the issues joined, under the petition and the separate answers and replies, and judgment was rendered in favor of the plaintiff below, against the defendants John A. Murray and C. Everest Elliott for the principal and interest due on said note up to the time of the trial. John A. Murray and Fannie C. Murray filed motions for new trial, which were overruled and excepted to, and case made and filed in the supreme court; and, after the case was filed in the supreme court, John A. Murray departed this life, and Fannie C. Murray was appointed administratrix of his estate, and the action has since been revived in the name of the said Fannie C. Murray, and has been duly certified by the supreme court down to this court for review.

The case comes to this court on the petition in error of John A. Murray and Fannie C. Murray. None of the other parties defendant below are made parties in this court. We are met at the very threshold of this case with a motion to dismiss the petition in error for want of proper parties, and also by motion on the part of the plaintiff in error to amend her petition by making C. Everest Elliott a party. The judgment in this case was joint judgment against John A. Murray and C. Everest Elliott for $1,516.90, bearing interest at the rate of 10 per cent. from the date of the rendition of said judgment, with a decree foreclosing the mortgage given to secure the payment of the sum of money for which judgment was rendered, and an order for the sale of the mortgaged property, and provides that, in case the mortgaged property fails to satisfy the judgment, the plaintiff shall have execution against Murray and Elliott for the deficiency, and that execution shall issue against Murray first. We do not think the plaintiff in error should be allowed to amend the petition in error, and bring parties before the court, more than one year after final judgment has been rendered. Section 556 of the Code of Civil Procedure provides "that no proceedings for reversing, vacating or modifying a judgment or final order shall be commenced unless within one year after the rendition thereof." In the case of Paper Co. v. Hentig, 31 Kan. 317, 1 Pac. 529, Valentine, J., speaking for the court, says: "We think that under no circumstance should a party be allowed to gain an advantage by bringing the case to the supreme court, and omitting to make some of the interested parties, parties in the supreme court;

and in no case should a judgment be interfered with by the supreme court where one of the parties to the judgment is not a party in the supreme court." The motion to amend the petition in error, and make C: Everest Elliott a party defendant, is overruled.

The judgment brought before this court is a joint judgment against John A. Murray and C. Everest Elliott, and Elliott has at no time taken any exceptions to the judgment or the proceedings on the trial which resulted in the judgment, and at all times since has acquiesced therein, and takes no exceptions thereto, and has not been made a party or brought into this court. The judgment being joint against Murray and Elliott for the recovery of the amount of the note and interest sued upon, and so connected with the decree of foreclosure that a reversal of the same would affect all the parties thereto, the reversal of the judgment as to Murray would leave the judgment in full force as against Elliott. This court cannot reverse or modify a judgment unless all the parties to be injuriously affected thereby are brought before the court. Ex parte Polster, 10 Kan. 204; Armstrong v. Durland, 11 Kan. 15; Hodgson v. Billson, Id. 357; Bain v. Insurance Co. (Kan. App.) 40 Pac. 817; Paper Co. v. Hentig, 31 Kan. 322, 1 Pac. 529; McPherson v. Storch, 49 Kan. 313, 30 Pac. 480. The petition in error will therefore be dismissed. All the judges concurring.

1. Where a judgment is rendered in favor of several persons, and said judgment is assigned by the owners thereof, and, after such assignment, one of the original owners of said judgment dies, no proceedings are necessary for any revivor of the judgment in the name of the legal representatives of the deceased person; and any further proceedings in the action may be maintained in the name of the assignee of said judgment, an order of substitution being first made by the court in which proceedings may be pending.

2. When an order discharging an attachment is made in any case, and the party who obtains such attachment excepts to such order for the purpose of having the same reviewed in an appellate court, the petition in error, to obtain such review, must be filed within 30 days from the discharge of the attachment, or the action of the trial court becomes final.

3. Where the hearing of an interplea is had before the court, and evidence offered by all parties interested therein, the determination of the court upon the interplea is equivalent to the finding of a jury, and will not be disturbed in a court of review, where there is evidence to sustain it.

4. Where a disagreement arises between counsel as to the nature and scope of an agreement entered into in open court, and the evidence as to what said agreement was is conflicting, the decision of the trial court as to what such agree

ment was must be considered as conclusive in this court.

(Syllabus by the Court.)

Error from court of common pleas, Sedgwick county; Jacob M. Balderston, Judge.

Action by Duvalson G. Weaver, Chester B. Thomas, Charles L. Kirk, co-partners as Weaver, Thomas & Kirk, against George P. Lock and B. F. Loper, partners as Lock & Loper. From an order discharging the attachment and sustaining an interplea of S. I. Loper, plaintiff's bring error. Affirmed.

J. V. Daugherty, for plaintiffs in error. Amidon & Conly, for defendants in error.

COLE, J. This was an action brought in the court of common pleas of Sedgwick county, Kan., by Weaver, Thomas & Kirk, against George P. Lock and B. F. Loper, partners as Lock & Loper, upon an account for merchandise. At the commencement of the action, an order of attachment was issued as to the property of the defendant B. F. Loper, and levied upon certain real estate in Sedgwick county. Afterwards a motion was filed by B. F. Loper to dissolve the attachment, and also an interplea was filed by leave of the court on behalf of S. I. Loper, wife of the abovenamed defendant. Upon the hearing of the cause, the attachment was discharged, and judgment was rendered upon the interplea in favor of S. I. Loper, and also a judgment for plaintiffs against the defendants Lock & Loper for the amount of their claim. From the order of the court discharging said attachment, and sustaining the interplea of S. I. Loper, the plaintiff's bring the case here for review.

A motion has been filed in this case to dismiss the petition in error, for the reason that Duvalson G. Weaver, one of the plaintiffs in error, died in December of 1892, and that no step had been taken to revive the action in the name of his representatives. These facts are admitted by plaintiffs in error, but the claim is made that, prior to the death of Weaver, the judgment in this action was assigned by Weaver, Thomas & Kirk to Sherwood & Rumsey; that, after such assignment, the firm of Sherwood & Rumsey dissolved partnership, Frederick A. Sherwood, one of the members of the firm, succeeding to the business; and the said Frederick A. Sherwood files his motion asking that he be substituted as plaintiff in error in this action, for the reason that he is the only person having any interest in the judgment in question. We are of the opinion that the motion to dismiss should be overruled, and the motion to substitute should be allowed. Paragraph 4117, Gen. St. 1889, provides the manner in which an action may be continued after the death or other disability of a party, and also provides that, "in case of any other transfer of interest, the action may be continued in the name of the original party, or the court may allow the person to whom the transfer

is made to be substituted in the action." Where the transfer of a judgment is made after proceedings for review have been filed in an appellate court, it is the undoubted right of the court of review to admit evidence of such transfer. In this case, Frederick A. Sherwood has established the fact in this court that the alleged transfer of the judg ment in question was made prior to the death of Duvalson G. Weaver, one of the plaintiffs in error. It will be admitted under the above facts that the firm of Weaver, Thomas & Kirk have no further interest in this action; and, while it might be continued in their name if the death of one of the parties had not occurred, yet it would be useless, under the circumstances, to revive the action at any time in the name of the representatives of Weaver. Under the statute above cited, and the case of Harris v. Frank, 29 Kan. 200, we are clearly of the opinion that a substitution is proper; and as Frederick A. Sherwood, one of the members of the firm to whom the judgment was assigned, has succeeded to the interest of the firm therein, it is proper that substitution be in his name. Brown v. School Dist. No. 84, 48 Kan. 709, 29 Pac. 1069; Insurance Co. v. Brown (Kan. App.) 44 Pac. 35.

So far as the ruling of the trial court discharging the attachment is concerned, it is not before us in proper manner for review. The statute prescribes that when an der discharging an attachment shall be made in any case, and the party who obtains such attachment shall except to such order for the purpose of having the same reviewed, the court or judge making such order shall fix the time, not exceeding 30 days from the time of discharging the attachment, within which the petition in error shall be filed, and, if such petition in error shall not be filed within the time limited, the order discharging said attachment shall become operative. In this case no objection is made to the judgment of the district court upon the cause of action, but simply to the ruling discharging the attachment, and sustaining the interplea of S. I. Loper; and, as the petition in error was not filed for several months after the discharging of the attachment, that order has become final. Under ordinary circumstances, the fact that the order discharging the attachment has become final would dispose of this case; but plaintiffs in error contend that they have a right to be heard in this court upon the alleged errors occurring upon the hearing of the interplea of S. I. Loper, and we are inclined to the opinion that this position is correctly taken. We have carefully examined the interplea and all the evidence in this case, and it is impossible for us to say that the decision of the trial court was contrary to law, and not supported by the evidence. The contention in this case arises from the fact that certain real estate had been conveyed to B. F. Loper, and, shortly before the commencement of this action, he

conveyed the same to his wife, S. I. Loper. It was claimed upon the trial that this was a fraud upon the creditors of B. F. Loper, and that S. I. Loper was estopped by her own action from asserting any title as against said creditors. It is true that some of the evidence tends quite strongly to uphold this theory, but there is also evidence which quite as clearly establishes the fact that the real estate in question was purchased with the separate money of S. I. Loper, and that, long before the commencement of this action, she had demanded of her husband a deed of the same, and he had promised to convey the land to her. If these facts were true, he probably always held as a trustee for his wife; but the trial court had all the evidence and the witnesses before it, and, there being testimony to sustain this finding, it will not be here disturbed.

It is further contended that the interplea of S. I. Loper was not heard by the court, and that the judgment which recites that a hearing thereon took place is false. It appears from the record that the hearing upon the principal case, the motion to discharge the attachment, and the interplea of S. I. Loper were, by agreement of counsel made in open court, had at the same time. It is now contended by counsel for plaintiffs in error that no such agreement was made, and affidavits have been filed with the record to sustain the position. Upon the other hand, affidavits of counsel for defendants in error quite as strong are filed supporting the position that such an agreement was made. It is to be regretted that any disagreement should occur between counsel as to a stipulation entered into in open court; but where such disagreement arises, and the evidence before this court is conflicting as to what the nature and scope of the stipulation were, a finding of the trial court must be deemed conclusive upon that point; and, as the parties might stipulate to have all these questions heard before the court at one time, we must hold that they are bound by the stipulation. Perceiving no error in this case, the judgment of the court of common pleas of Sedgwick county is affirmed. All the judges concurring.

(114 Cal. 176)

HIGGINS v. WILLIAMS et al. (S. F. 165.) 1 (Supreme Court of California. Sept. 5, 1896.) INJURY TO EMPLOYE-NEGLIGENCE OF MANAGERCONTRIBUTORY NEGLIGENCE-INSTRUCTIONS.

1. The negligence of a foreman and manager, under whose direction and superintendence a steam shovel was set up and put to work, in failing to have a key put in a pin to hold it in place, which defect he knew of, or should have known of, and by reason of which a bucket fell from it onto an employé working with the shovel, is the negligence of the master.

2. The employer is none the less liable for the negligence of a foreman and manager to whom he had intrusted the construction of a sewer, in setting up and putting to work a steam shovel in an unsafe condition, because

1 Rehearing denied. v.45P.no.16-66

the employer did not own the shovel, and did not know that the manager had hired it and put it to work.

3. An employé working in a trench, in excava ting, is not precluded from recovering for injury from the falling of a bucket from the steam shovel because a pin had not been made secure by a key, though one outside the trench could have seen that the key had not been put in; he having been hurriedly put into the trench, without opportunity to examine the shovel, and having a right to rely on the machine being all right.

4. An instruction, in an action against a master by a servant for injury, that the duty which defendant owed plaintiff, to furnish safe machinery, was a personal one, which he could not escape by intrusting it to an employé, cannot be complained of because not stating that defendant was only required to furnish "reasonably safe" machinery, as the court was not passing on the degree of safety required.

5. A requested instruction, that "I also instruct you that it was not needful to instruct plaintiff, although a minor of eighteen years, that if a bucket of 500 pounds weight should fall on him it would hurt or injure him," may be refused, because not a statement of law.

Commissioners' decision. Department 1 Appeal from superior court, city and county of San Francisco; John Hunt, Judge.

Action by Henry C. Higgins against C. B. Williams and others. Judgment for plaintiff, and defendants appeal. Affirmed.

J. C. Bates, for appellants. J. C. Needham and C. L. Russell, for respondent.

BELCHER, C. The plaintiff, a minor 18 years of age, was employed by defendants in digging a trench for the construction of a sewer in the city of Modesto. While so employed, he was seriously injured by the falling of an iron bucket which was being used to hoist the earth from the bottom of the trench. He brought this action, by his guardian ad litem, to recover damages for the injuries sustained, and recovered a verdict, on which judgment was entered, for the sum of $3,000; from which judgment, and an order denying their motion for a new trial, defendants appeal.

Two points only are made for a reversal: First, that the court erred in denying defendants' motion for a nonsuit; second, that the court erred in its instructions to the jury.

The motion for nonsuit was based upon two grounds: (1) That plaintiff had failed to prove that defendants knew of any defect in the machine by which the bucket was hoisted; and (2) that the injury to plaintiff was the result of the fault of a fellow servant. It appears that defendants had entered into a contract to construct a system of sewers in the city of Modesto, and were engaged in performing the contract. They had intrusted the management of the work to one Arthur R. Wilson, who was their foreman, and had authority to hire and discharge and direct the men employed. At the point where the plaintiff was injured, the trench had been sunk to such a depth that it was necessary to have the earth hoisted by machinery; and, to do this hoisting, Wilson, without the knowledge

of defendants, caused a machine known as the "Carson Trench Machine" to be set up and used. The machine was operated by a steam engine, and by it the buckets, when filled with earth, were hoisted, and, after being emptied, were lowered back, to be again filled. The trench was divided into sections about seven feet long and five or six feet wide, and in each section two buckets were used, and two men were employed. The machine was set up and started in the afternoon of one day, to see if everything was in order; and the next day it was started with a full crew, and in the afternoon of that day the accident happened. About 1 or half past 1 o'clock of that day, plaintiff was directed by Wilson to go to work in the trench where the machine was, to fill empty buckets. As directed, he went to work, and about two hours thereafter one of the filled buckets which was being hoisted fell and struck him, causing the injuries complained of. One Daniels, who was working in the same section with plaintiff, was called as a witness for him, and, after describing the machine, stated how the accident happened, as follows: "I made an investigation right then as to the cause of the accident. I found that the pin that held the headblock had come out, which was the immediate cause of the accident. That is the headblock that held the main cable. * The pin in that block came out, letting the cable down, and the tubs fell, of course. When the pin came out, the cable was not detached altogether from the block. The cable was over this block, and the tubs were being hoisted; and while they were being hoisted the pin came out, the block dropped, and the cables gave way, and the tubs fell. That pin did not break. It came out. A key was supposed to hold it there. There was no key in the pin. If there had been, it would not have come out. Nothing was supposed to hold the block there after the pin came out. * * * Mr. Wilson, the superintendent, said right after the accident that he knew the key was out. He said he didn't think the pin would come out; that he calculated to have a key put in there, and it rather slipped his mind. * 申 * I saw the Carson trench machine partly set up. In a machine they generally put a key in the end of the pin. I did not look to see whether any pin was in there, in the block, until after the accident occurred. The pin was out of the block then. I did not look at any time to see whether there was a key in the pin, but immediately I looked for the key to see if there was any key there.

*

Before we went into the trench that block was in plain sight on the machine, where we could see it. ** * I saw the block in plain sight, or could have if I had looked at it. I had as good an opportunity to see it as anybody, and so did Mr. Higgins, I suppose. The bucket struck Mr. Higgins first, before it struck the empty bucket. It hit Mr. Higgins apparently back of the shoulders,-right on the shoulders. Mr.

Higgins had been standing in the corner as close as he could get. His shovel was standing right up against this partition, and he turned and put his hand upon the shovel just as the bucket fell. It struck Higgins first, and then struck the empty bucket. It just struck the top of my head as it came down, and also struck Higgins on the shoulder and knocked him down,-a bucket filled with earth, maybe two feet deep. He was found with the bucket on top of him, resting partly upon the empty bucket and partly upon him. The bucket fell sixteen or eighteen feet." The above statements were corroborated by other witnesses, and, among other things, the plaintiff testified: "I did not know anything about the condition of the pin or cable before I went into the trench. I thought the machinery was all right, or Mr. Wilson would not send me in there. * * * I didn't have any opportunity to examine the machinery prior to going into the trench. Mr. Wilson did not invite me to look at the machinery. He invited us to hurry up. He said he wanted to start the machine, and he told us to get right down." It was also proved that the pin which held the block was about 14 inches in diameter and 4 or 5 inches long; and at its lower end was a small hole, through it, to put a key in, to prevent it from working up. "It was such an arrangement as is usually held fast by a key, and not left loose." The pin, when in place, stood about 10 or 15 degrees from perpendicular.

1. Upon the facts proved, the first question is, did the court err in denying the motion for nonsuit? The rule of law is well settled in this state that it is the duty of an employer to furnish his employés reasonably suitable and safe machinery and appliances with which to do the work required of them, and keep such machinery and appliances in repair and order. And it is a duty which cannot be delegated to another, so as to exonerate the employer from liability to an employé who is injured by the omission to perform the duty, or by its negligent performance. In Fuller v. Jewett, 80 N. Y. 52, the court said: "In respect to such act or duty, the servant who undertakes or omits to perform it is the representative of the master, and not a mere co-servant with the one who sustains the injury. The act or omission is the act or omission of the master, irrespective of the grade of the servant whose negligence caused the injury, or of the fact whether it was or was not practicable for the master to act personally, or whether he did or did not do all that he personally could do, by selecting competent servants, or otherwise, to secure the safety of his employés." And see Sanborn v. Trading Co., 70 Cal. 265, 11 Pac. 711, where the above language was quoted approvingly. In Daves v. Southern Pac. Co., 98 Cal. 24, 32 Pac. 710, the court said: "If the act was one which it was the duty of the employer to perform towards its servants, and one of them negligently performed it to the injury