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jections to the proceedings referred to in the from Edwards, and giving to the plaintiff a brief have been considered, but further com- second lien for the amount of its judgment, ment is deemed unnecessary.
and ordering a sale to satisfy these liens. The judgment is affirmed. All the Justices Yost appeals. concurring.
 The first contention of the appellant is that the courts should have entered judg
ment for the defendants on the mandate. (84 Kan. 495)
There was no order to enter judgment, but FIRST NAT. BANK OF HAYS CITY v.
the case was remanded with directions to EDWARDS et al.†
proceed further in accordance with the opin(Supreme Court of Kansas. April 8, 1911.)
ion. The district court and the parties at (Syllabus by the Court.)
that time evidently understood the opinion 1. APPEAL AND ERROR (88 238, 1201, 1210*)—to authorize a new trial, and this was the REMAND PROCEEDINGS BELOW AMEND-correct view. Cahn v. Tootle, 58 Kan. 260, MENT-MOTION FOR JUDGMENT.
At a former hearing of this case in this 48 Pac. 919; McDonald v. swisher, 60 Kan court a judgment was reversed and the cause 610, 57 Pac. 507. Besides no motion for remanded for further proceedings in accord- judgment was made nor any objection taken ance with the opinion. The district court then to the filing of an amended petition, but a allowed amended pleadings to be filed and pro- new answer was filed, and, after several conceeded without objection to a new trial of the action. It is held" (1) that this was proper; (2) tinuances, the case was tried without raising that, as the defendant did not move for judg- the question. It is now too late to do so. ment on the mandate, or otherwise present the It is also argued that the law of the case question, it is now too late to do so.
[Ed. Note.-For other cases, see Appeal and was settled in the former opinion holding Error. Cent. Dig. 88 4673-4683, 4710; Dec. that the instrument in question was not a Dig. 88 238, 1201, 1210.*)
mortgage, and that no subsequent proceed2. MORTGAGES (8 33*)–AGREEMENT TO RECON-ings in the district court could enlarge the VEY-EFFECT.
controversy to include any other question. The effect of a deed of conveyance of land The question presented to this court at the and a simultaneous agreement to reconvey must be determined by the intent of the parties, as former hearing is thus stated in the opinshown by their situation, the circumstances sur-ion: "Was the transaction between plainrounding the transaction, the terms of the in- tiff in error and Edwards, as evidenced by strument, and independent parol agreements not the warranty deed, and bond for deed, a conflicting with such terms.
[Ed. Note: --For other cases, see Mortgages, mortgage or a conditional sale? The quesCent. Dig. 88 67-82; Dec. Dig. $ 33.*]
tion was thus answered: “From an exam
ination of the evidence found in the record, Appeal from District Court, Ellis County. and a consideration of the legal effect of the
Action by the First National Bank of contract between Edwards and plaintiff in Hays City against Byron S. Edwards and error, we are persuaded that the evident inothers. Judgment for plaintiff, and defend- tention of the parties to the transaction at ants appeal. Affirmed.
the time it occurred was that the deed should Waters & Waters, for appellants. W. E. operate as a conveyance, and that no en. Saum, for appellee.
forceable debt from Edwards to plaintiff in
error should or did remain." It was also BENSON, J. This is a creditors' suit to said in the opinion: “It is a settled rule of subject the equity of Edwards and wife in law that the intent of the parties to a deed a tract of land to the payment of a judg- absolute in form at the time it is executed ment, and is presented here for a second and delivered must govern, and that the review. Yost v. Bank, 66 Kan. 605, 72 Pac. rights of the parties must be mutual.” The 209.
case was decided at the former hearing upon On the 24th day of March, 1899, the Ed- the evidence contained in the record then wardses conveyed the land to Yost, who at presented. It must now be decided upon the the same time agreed to reconvey it to Ed- abstracts in this appeal. The district court wards upon the payment of $750 and all heard new evidence upon the amended pleadnotes due to Yost with interest thereon, if ings, and in doing so did not violate the such payment should be made within two mandate of this court or transgress the rules years. A copy of the agreement is contained of good practice. Conroy v. Perry, 26 Kan. in the former report of the case. After en- 472; Duffitt & Ramsey y. Crozier, Judge, 30 tering the mandate of this court reversing Kan. 150, 1 Pac. 69; State v. Scott County, the former judgment for the plaintiff, the 61 Kan. 390, 59 Pac, 1055. In Cahn v. Toodistrict court allowed an amended petition tle, supra, in considering the effect of an to be filed, to which the defendant Yost filed opinion delivered upon a former review of an answer. The second trial was in March, that case, it was said: “The decision of this 1908, and afterwards findings were made court became the law of the case upon the and judgment entered for the plaintiff giv- state of facts disclosed in the record brought ing the defendant Yost a first lien upon the here, and the result was to set aside the land for an amount found to be due to him judgment which had been previously enter•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes
ed. When the case was remanded to the dis- | $200, which was credited on the judgment. trict court for further proceedings, the par- and she was released. It is not contended ties litigant were restored to the same con- that this “released the liability of Yost for ditions in which they were before the trial one-half of that judgment”; i. e., the judgwas had or judgment rendered,"
ment upon which this suit was brought.  It is further contended that the court But it is not claimed that the appellant is destroyed the legal effect of the deed upon liable upon that judgment. No lien is claiminsufficient evidence. In reviewing a similar ed upon his property, but only upon the case this court said: "Evidence of the situ- property of the Edwardses, which is their ation of the parties, the circumstances sur-equity in the land, after satisfying the aprounding the transaction, and of independ-pellant's claims in full; hence he is not inent parol agreements not conflicting with jured by the release of Mrs. 'Edwards. the terms of the written instruments was Finally, it is argued that the lien of the competent, and we do not see that any other appellee is lost because an execution was not material testimony was received." McNa- issued upon its judgment for more than five mara v. Culver, 22 Kan. 661, 670. At the years. This action to enforce the lien of date of the deed and contract Edwards was that judgment was commenced in less than indebted to Yost in the sum of about $545 one year after it was rendered, and has upon notes held and retained by the appel- been pending ever since. An execution to lant. A judgment for $750 was then a lien preserve the vitality of the lien was not necupon the land, to which the deed was made essary. Treat v. Wilson, 65 Kan. 729, 70 subject, and which the grantee assumed. In Pac. 893. a few days afterward the appellant took an No error appears, and the judgment is assignment of this judgment, but satisfaction affirmed. All the Justices concurring. was not entered. In June, 1900, the appellant entered into an agreement to sell the
(5 Okl. Cr. 334) land to the Karlins (who were made defend
HAVILL v. UNITED STATES. ants when the amended petition was filed), receiving a payment in September, 1900, (Criminal Court of Appeals of Oklahoma. April which he credited on the Edwards' notes,
10, 1911.) although he testified that all these notes had
(Syllabus by the Court.) been satisfied by the conveyance. Another 1. CRIMINAL LAW (88 649, 1152*)-APPEALpayment was also indorsed on these notes REVIEW-DISCRETION OF COURT-CONDUCT about the same time, and they were not sur.
OF TRIAL. rendered or canceled. In an answer in this the court over the objection of the defendant
During the progress of a trial for murder, case filed in March, 1901, less than one year suspended the trial for several hours in order after the deed and agreement were made, to enable the state to procure the attendance the appellant pleaded the judgment which of absent witnesses. Held, that this proceedhad been assigned to him, alleging that he court, and such order of the court will not be
ing was within the sound discretion of the had acquired it by purchase. He also plead- reviewed unless an abuse of discretion appears. ed the several promissory notes made by [Ed. Note.-For other cases, see Criminal Edwards, claiming the amount unpaid there-Law, Cent. Dig. $8 1512–1515, 3053-3057; Dec. on to be still due, and alleged that he had Dig. $8 649, 1152.*] paid taxes on the property, and prayed that 2. CRIMINAL LAW ($_168*)—FORMER JEOPARDY
-SUSPENSION OF TRIAL. the sum of all these items should be adjudg
Upon resuming the trial the defendant ined a first lien upon the land in his favor. terposed a plea of former jeopardy. Held, that This pleading was verified by the appellant, said plea was without merit, and was properly and is competent evidence tending to sup
overruled. port the appellee's claim. While the amend-Law, Cent. Dig. $$ 290-303; Dec. Dig. $ 168.* ]
[Ed. Note.-For other cases, see Criminal ed answer upon which the action was finally tried pleaded an absolute title, and denied
3. CRIMINAL LAW (8 1166*)---APPEAL-HARM
LESS ERROR. that the Edwardses had any equity in the The right of a defendant indicted for a land, the first answer was still competent capital offense alleged to have been committed evidence. Arkansas City v. Payne, 80 Kan. in the Indian Territory prior to statehood to
have delivered to him under section 1033, Sts. 353, 102 Pac. 781; Every v. Raines, 84 Kan. Ann. vol. 2, p. 344 (U. S. Comp. St. 1901, p. 560, 115 Pac. 114 (just decided). This answer | 722), at least two days before the trial a list was not contained in the case made at the of the witnesses to be produced, is not violated former hearing nor brought into the record to the extent of constituting, reversible error in this court in any way. Without review- lative, and offered for the sole purpose of fixing
where the testimony of the witness was cumuing the evidence further, it is sufficient to the time and place of the victim's death. say that it sustains the finding that the [Ed. Note.-For other cases, see Criminal deed was intended as a mortgage, and should Law, Cent. Dig., 88 3100-3102, 3107–3113;
Dec. Dig. & 1166.*] have that effect only. The appellee's judgment, upon which this 4. CRIMINAL LAW ($ 97*) – MURDER - MAN
SLAUGHTER-LENGTH OF TIME. action is founded, was against Edwards and
Murder or manslaughter is committed withwife. In January, 1902, Mrs. Edwards paid in the Central district of the Indian Territory For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes
if the felonious act is committed there, al- 1 of Joe Christopher. He further testified as though the death occurs in the state of Texas. follows: "A. I was standing in my front
[Ed. Note.--- For other cases, see. Criminal door, and Mr. Christopher had placed some Law, Cent. Dig. 88 177–191; Dec. Dig. $ 97.*] fishing poles nearly in front of my door. He Appeal from District Court, McCurtain was preparing to go fishing, and his little
boy, eight, nine, or ten years old, was stand. County; D. A, Richardson, Judge. Jean Havill was convicted of manslaughing near his father's door, playing, when lit
tle Sally Havili, about eight or nine years ter, and he appeals. Affirmed. See, also, 113 Pac. 991.
old came along. She was playing, and in
some way struck at Mr. Christopher's little Plaintiff in error, Jean Havill, was indict. boy, and he grabbed her and said that be ed in the United States court for the Cen- was going to kiss her, and it made her mad, tral district of the Indian Territory at the and she went off crying. Mr. Christopher September term, 1907. The indictment charg- made the little boy quit. In a short time ed that the defendant on the 28th day of Au- after, 20, 30, or 40 minutes after, Jean Havill gust, 1907, within said district, shot and came down. I was standing in my front killed one Joe Christopher. Upon a trial in door, and he told Mr. Christopher that he the district court of McCurtain county, to had come down to whip his boy. He said which court the case was transferred after that Joe Christopher would have to whip his statehood, the jury by their verdict found boy, or he himself would do it. Christopher the defendant guilty of manslaughter, and asked him why, and he said the way the assessed his punishment at imprisonment boy had treated his little sister, and Mr. for a period of one year and a fine of $50. Christopher told him that he had made the The judgment and sentence was rendered boy stop and let her alone, and so on. Jean and entered on October 3, 1908, from which persisted in Christopher whipping the boy, judgment an appeal was perfected by filing and was swearing. Finally Joe told him to in this court on January 7, 1909, a petition leave his place of business, and Jean said he in error with case-made attached. The ap- did not have to go, still swearing. It seems peal was dismissed for failure to file proof to me that Joe went up to him as if to lead of service of notices of appeal. 113 Pac. 991. him off, that was whạt I thought, but I do This dismissal is set aside for the reason not know what he meant to do, and my recolthat the records of the clerk of this court lection is that Jean struck at him. When he show that proof of service was filed within did this, Joe grabbed him by the shoulders, the time in which the appeal could be per- or some way, and shoved him down against fected. The evidence on the part of the state is in then let him up. When he got up, he said,
the sidewalk. He shook him that way, and substance as follows: Dr. L. M. Ellis testified that he was a for me, but I'll do you, I'll kill you for
'Christopher, you are a man, and too much physician and surgeon practicing at Millerton; that he was called to see Joe Christoph- that.'” He further testified that the de er on the evening of the 28th day of August, ceased was about 35 years old and would 1907, and found him suffering from a gun weigh about 150 or 160 pounds. shot wound, the ball having entered on the
Ben Miller, Jr., testified that about 6:30 he side at the juncture of the seventh and was walking home on the street that deeighth ribs, and passing through the body;
fendant lived on; that as he was passing a that he saw Mr. Christopher the last time shot was fired. He further testified as foltwo days later; that he was in a very seri- lows: "Q. Who fired the first shot? A. I ous condition; that the wound was neces- could not say. Q. I'll ask you if Mr. Chris sarily fatal. He further testified as follows: topher fired that shot? A. No; be did not "Q. Do you know what the result of that fire that shot. Q. You may proceed. A. wound was? A. Yes; it produced septic When the first shot was fired, I think I peritonitis. Q. What was the final result walked down the street and remarked to of that wound? A. Death.” Recalled, he Mr. Havill, the boy's father, to try and stop testified as follows: "Q. State to the jury the trouble or some one would get hurt. or what that conversation was? A. He came in course, at that time I was in the center of and wanted to borrow a gun from me.
I the street, and about that time some more asked him what he wanted with it, and he shots were fired, and that is about all I told me to shoot Joe Christopher. Q. State could say about it. Q. Do you know why as near as you can how long that was before fired those shots after that? A. Well, I saw the shooting took place. A. It was about one shot fired after that. Q. Who fired that half or three quarters of an hour. Q. He shot? A. Jean Havill. Q. Where was he at stated to you that he wanted the gun to the time he fired that shot? A. At the corkill Joe Christopher with? A. He said to ner of the house, as near as I can remem‘shoot him."
ber." D. Holden testified that he was a general W. R. Jones testified: "Q. I will ask you merchant, his place of business joining that if you saw Jean Havill prior to the time the
first shot was fired? A. Yes, sir. Q. What, state where Christopher was? A. He had was he doing? A. He was in his yard. Q. either come out of the gate or was going State to the jury where Jean went, if any- out. Q. In doing so, was he going towards where, before the first shot was fired. A. Havill or going away from him? A. Going Well, I was standing in my home, and away from him. Q. After that difficulty did Christopher was sitting on his front steps, you have a conversation with Jean Havill? with his hand up here like this, in his breast, A. I did. Q. Was that conversation between and his little boy came up the street, and you and Jean Havill prior to the shooting? Mr. Havill or Mrs. Havill said something to A. Yes. Q. What was that conversation ? him. I did not understand what it was. A. He wanted to borrow a gun from me. Q. Christopher jumped up and said, 'If you Did he state why he wanted the gun? A. have anything to say to him, say it to me,' Yes. Q. What did he say he wanted the gun and went up to the fence, and talked, but I for? A. He said he wanted it to shoot Joe could not hear what was said. Jean was Christopher with.” His cross-examination over in his yard and he came running to the showed that he owned the gun that Chrisgate with a pistol in his hand behind him, topher had at the time the shooting took in his right hand, and stood there a little place. bit and listened to them, and the first thing Mrs. Lucy E. Foreman testified, in part, I knew he had drawn and shot. Q. I'll ask as follows: "Q. Did you live neighbor to Mr. you if Jean made any effort to borrow a pis.. Christopher and Mr. Havill? A. Yes, sir. I tol from you that evening? A. Yes. Q. Did lived just across the street from them. Q. he state what he wanted it for? A. No; he I'll ask you if you saw any part of the did not. He came over to my house late in shooting scrape between them on the 28th the evening, and told me of the rucus he had day of August? A. I did. Q. In your own had on the street, and asked me if I had a way please state just what you saw, and pistol. I told him I did, and he asked me to not what has been told you. A. I went to loan it to him, and I said no."
the door that evening to see where the chilCooper Watkins testified that he lived dren were and heard a racket- Q. What right across the street from the defendant kind of a racket? A. Talking and it looked and the deceased; that he came out of his like my children were down among them. In house and started down town and walked a few minutes I saw Jean go in the house. 10 or 15 steps, turned around, and looked He came out in a minute or two, and then back; that “just, as I looked back, Jean directly fired the shot. Q. Did you see stepped to the fence, threw up his gun, and Jean's pistol before he fired? A. Yes. Q. shot twice.” He further testified as follows: Can you state how close he was to Mr. "Q. Had any other' pistol been fired prior to Christopher when he fired? A. I cannot say that? A. No. Q. Did you see Mr. Chris- exactly. Q. Can you estimate it? A. I cantopher at that time? A. Yes. Q. State what not say how close it was, probably about ten you saw Mr. Christopher doing, if anything. feet. Q. I will ask you if your attention A. When Jean fired, he jumped back and was directed to both Mr. Havill and Mr. jerked his gun from his bosom, and Jean ran Christopher at this particular time? A. Yes; inside his yard. He was about half way I think it was. Q. I will ask you if you from the gate to the house, and Christopher noticed the position of Mr. Christopher's shot twice. He ran around the house, and hands at that time? A. Mr. Christopher Christopher started outside the gate, and was standing at the fence, with one hand just as he got outside the gate Jean shot on the fence, and the other hand by his side. him again. Q. Was that all the shots that Q. What time did you see his hands in that were fired by Christopher? A. Yes. Q. He position? A. That was before the shooting. fired two shots after Jean Havill had fired Q. At the time the first shot was fired did two shots at him? A. Yes.' Q. Did he you see the position his hands were in? A. have his gun in his hand at the time Jean Yes; that was like I said. Q. Can you state Havill fired the first two shots? A. No; I of your own knowledge who fired the first do not think that he did. He jumped back and second shots? A. I guess Jean fired the and jerked his gun from his bosom. Q. You first and second shots. Q. Do you know who saw him jerk his gun from his bosom after fired the two next shots? A. Yes; Mr. the first two shots were fired? A. Yes, sir. Christopher.” Q. You are positive that Jean Havill fired Here the record shows the following protwo shots before Christopher fired any? A. ceedings were had: "The State: It will be Yes, sir."
impossible for the state to proceed further Phillip Johnson testified that he was as in the trial of this case until the arrival of sociated with Joe Christopher in business at the train from Hugo this afternoon. The the time of his death; and further testified train gets here at 4:53, and we cannot proas follows: "Q. State to the jury what part ceed further until the arrival of the witof the shooting you saw? A. I saw one shot ness on that train. fired by Havill. Q. Where was Havill at the “The Defendant: The defendant being in time this shot was fired? A. Behind the cor- court, we move the court that the trial of ner of the house he lived in. Q. Can you this case proceed.
"The Court: I'll overrule the objection. death? A. Only that I saw he was shot. "The Defendant: We except.
Q. How long did he live after he was shot? “The Defendant: We now move the court A. I was not there when he was shot. From that the defendant be discharged, there not the time I learned that he was shot he lived having been offered any evidence sufficient about 7 days, about 614 days. Q. Do you to convict him, or to hold him further on know where he died? A. I know it was in this charge.
a hospital, but I have forgotten the name "The Court: The motion will be overruled. of it. It was in Paris, Tex. He was under "The Defendant: We except.
the care of Dr. Hooks. Q. In Paris, Tex., or "The Defendant: We now move the court Paris, Okl.? A. Paris, Tex." to instruct the jury to return a verdict of The evidence on the part of the defendant not guilty against this defendant on ac- is in substance as follows: count of insufficient evidence to convict him. J. W. Guest testified that he was present
"The Court: The court holds that it has when the fist fignt occurred; did not hear power to suspend further proceedings in the the defendant make any threats that he trial for a reasonable time to enable absent would kill the deceased; that this was at witnesses, whether subpænaed or not, to at least an hour before the shooting took place. tend the trial and give their evidence, and Doc. Guest testified that he saw the fist the court overrules the motion and the re- fight about 5 o'clock as he was driving by quest of the defendant, and will defer fur- with a load of logs; that about 15 minutes ther proceedings in the trial for a reason- later he met Mr. Christopher, and heard able time to await the arrival of the wit- him say that, "I am going to get a Havill or nesses.
two before supper"; that he went from there "The Defendant: We except.
to the post office, and 20 minutes later met “The Court: Let the record show that the the defendant, and told him what Mr. ChrisJury during this time were not allowed to topher had said; that just before the shootseparate, but were kept in charge of their ing he saw the parents of the defendant sworn bailiff, and were duly admonished not standing in their yard, and the deceased was to talk about the case among themselves, or coming from his door towards the fence that to allow others to do so in their presence.” divides their dooryards, and that his hand
Before the taking of testimony was re- was in his bosom; that the defendant came sumed on the same day the defendant filed out of the door of his home where Mr. Chrisa plea of former jeopardy, which plea was topher and his father was talking, and that overruled by the court, and B. F. Christo- the deceased pulled a gun from his bosom pher, a witness for the prosecution, being and they both shot; that he did not know duly sworn, testified as follows:
who fired the first shot; that Mr. Christo"Q. Please state your name? A. B. F. pher fired the first shot at the elder Havill Christopher. Q. What is your age? A. 43 and the second shot at the defendant, and years. Q. Where do you live? A. At Cuth- then walked out in the middle of the street and, Texas, in Red River county.
and fell down. "Defendant: The defendant objects to any Mrs. Ollie Robb testified that she witnessquestion that may be asked the witness oned the shooting, but could not say who fired the ground that this case was suspended the first shot; that the defendant was at without the consent of the defendant, and, her house a few minutes before with a pistol being resumed again, is a violation of his in his hand; and that she did not see a rights, and is placing him on trial twice pistol in Mr. Christopher's hand before the before a jury for the same offense. Defend- first shot was fired. ant objects on the further ground that he H. E. Robb testified that the first two was not two entire days before the trial of shots were fired by the defendant and the this cause furnished with a list of the wit- deceased, but he could not say who fired the nesses to be used by the prosecution in first shot. chief, showing the name and residence of the John Havill, father of the defendant, teswitness B. F. Christopher.
tified that the first shots were fired by the “The Court: Let the record so show. I'll deceased and the defendant almost together; overrule your objection.
that he and Mr. Christopher had no former “Defendant: We except.
trouble. "Q. Are you acquainted with Jean Havill? . Mrs. Havill, the mother of the defendA. I know him when I see him. I have ant, testified that the first two shots were seen him a few times. Q. You were ac-together. quainted with Joe Christopher? A. Yes; he The defendant testified: That he went was my brother, younger than me. Q. Where down to Mr. Christopher's place, and said is Joe now? A. He is dead. Q. Do you to him, “'You ought to make your boy beknow that of your own personal knowledge? have himself, and make him stop annoying A. Yes; I seen him after he was dead. I my sister. If you cannot tend to him, I seen him in the undertaker's office, and I will have to do so.' He ordered me away, looked at him at the grave where he was ordered me to get off his sidewalk. I told