G. M. Martin and A. L. Noble, for plaintiff in error. Chester I. Long, for defendants

in error.

DENNISON, P. J. The city of Medicine Lodge instituted condemnation proceedings before the judge of the district court of Barber county, Kan., and procured the appraisement of certain lots in said city as the property of Frank F. Horner. Feeling aggrieved at the amount of compensation awarded, Horner filed an appeal bond. During the pendency of the action in the district court, Horner died, and Alburtus F. Horner, as administrator, gave notice and procured a revivor of the action in the name of Alburtus F. Horner, as administrator of the estate of Frank F. Horner, deceased, and in the name of Catharine J. Horner, Clarence W. Horner, Alburtus F. Horner, John W. Horner, and Arthur L. Horner, as heirs at law of Frank F. Horner, deceased. At the trial the city objected to the introduction of any testimony, "for the reason that the petition or condemnation proceedings do not state facts sufficient to entitle them to produce any testimony." At the close of the evidence for the defendant in error, the city demurred to said evidence, as follows, to wit: "The defendant demurs to the evidence of the plaintiff for the reason that the evidence is not sufficient to prove a cause of action in favor of the plaintiff, and against the defendant, and because the papers show on their face that there is a defect of parties plaintiff in this action, and for the further reason that the testimony fails to show that the plaintiffs, the present plaintiffs, have any legal capacity to maintain this action." Demurrer overruled.

The plaintiff in error contends that the action must not only be revived in the name of the successors in interest of the deceased, but that they must allege in issuable form and prove their sole right to maintain the action as such successors in interest. The defendant in error admits the legal proposition contended for, but contends that as this is a condemnation proceeding, and no petition is required to be filed by the landowner unless demanded by the adverse party, and as no such demand was made, the doctrine does not apply in this case. We conclude otherwise. The city was entitled to a trial upon the question as to who was the successor in interest of the landowner, so that it might be determined who was entitled to maintain the action. The revival of an action seems to be a formal matter, instituted for the purpose of maintaining the necessary parties to an action; and, when an action has been revived in the name of a person, such person must allege and prove that he is the proper person to maintain or defend the action. We can understand why a person whose property is sought to be taken

by condemnation proceedings, and who is named therein as owner, need not allege that he is the owner of the property; but we cannot understand why another person or persons can claim the right to be substituted as the successor in interest of such landowner without tendering the issue and furnishing the proof that they are the proper persons to maintain the action. Judgment of the district court is reversed, and the cause remanded for a new trial. All the judges concurring.

(7 Kan. App. 654)

GERTZ v. BECK.

(Court of Appeals of Kansas, Southern Department, C. D. July 13, 1898.) CASE-SETTLEMENT-DEMURRER TO EVIDENCE

JUDGE.

1. A case-made must be settled by the judge who tried the cause.

2. A judge who succeeds the judge who tried a cause is competent to pass upon a demurrer to the evidence introduced in said cause, when requested to do so by the parties, and when furnished with what is agreed by the parties to be a correct copy of the evidence. (Syllabus by the Court.)

Error from district court, Marion county; Lucien Earle, Judge.

Action by Agnes Beck against Franz Gertz. Plaintiff had a judgment, and, a new trial being denied, defendant brings error. Affirmed.

S. Bertholder and A. L. Greene, for plaintiff in error. W. H. Carpenter, for defendant in error.

DENNISON, P. J. This action was tried in the district court of Marion county, Kan., before Judge Frank Doster and a jury. A verdict was returned in favor of the defendant in error for the sum of $500. A motion for a new trial was filed, and came on to be heard by Judge Doster, who was about to overrule the same, and so expressed himself, when counsel for the plaintiff in error offered to show, and attempted to prove, misconduct upon the part of the jury; whereupon counsel for defendant in error asked for and obtained time to take the evidence of the jurors, and the hearing of the motion was deferred until the term of Judge Doster had expired, and he had been succeeded by Judge Lucien Earle. The motion for a new trial came on to be heard before Judge Earle, and counsel for the plaintiff in error stated that he did not claim that the verdict was against the weight of the evidence, but that he did claim that the court erred in not sustaining the demurrer of this plaintiff in error to the evidence introduced by this defendant in error, and in not directing the jury to bring in a verdict for the defendant, this plaintiff in error. The record in this case recites "that a full and complete transcript of the evidence in said case, made by the official stenographer.

was in court at the time said motion was heard before Hon. Lucien Earle, Judge, and that the same was read to the court by the counselor for defendant,-such parts thereof as counsel desired to read and have read." Evidence was introduced to sustain and to resist the motion for a new trial, so far as the misconduct of the jury was concerned. The court thereupon overruled the motion for a new trial, and rendered judgment upon the verdict.

The case is brought to this court, and attached to the petition in error is a casemade, settled by Judge Earle. We are precluded from examining into any of the errors alleged to have been committed by the court while Judge Doster presided, for the reason that the case-made is not settled by him. Section 590, c. 95, Gen. St. 1897, requires a case-made to be settled by the judge who tried the cause. The supreme court held in Hodgden v. Commissioners, 10 Kan. 637, that without such statutory authentication they could not examine into a case-made. can only consider the rulings of Judge Earle upon the proceedings had before him.

We

Counsel for defendant in error insist that Judge Earle properly signed and settled the case. In his brief he says: "Of course, Judge Earle could not have signed and settled the case containing the evidence in the case at bar if the plaintiff below had objected to his so doing. But when the parties agreed, as they did in this case, as to what the evidence was, then there was nothing for Judge Earle to do but to settle and sign the record containing the evidence, as he did do in this case; and the plaintiff in error is estopped by his actions from saying that it is not the evidence, as he is estopped from saying that the record of the evidence was not before Judge Earle when he passed upon the motion for a new trial." Counsel for plaintiff in error in their brief say: "There are none of the proceedings had on the trial of said cause, which took place before his honor, Judge Doster, before this court. While we have a case-made, certified to by his honor, Judge Earle, which says it contains all the proceedings had in said cause, we know that the judge could not make such a certificate with authority, for the very good and sufficient reason that he knew nothing whatever about what proceedings were had before his predecessor." We agree with the contention of the plaintiff in error that Judge Doster was the proper person to settle the case as to all matters tried by him. We have examined the evidence introduced as to the misconduct of the jurors, and approve the findings of the court that the jurors were not guilty of misconduct.

The only remaining question is whether Judge Earle could overrule the motion for a new trial, and render a judgment upon the verdict. Counsel for plaintiff in error admitted to Judge Earle that the verdict was sustained by the weight of the evidence, and

presented to him what was agreed to be a copy of the evidence, and contended that the demurrer to the evidence of defendant in error should have been sustained. We think Judge Earle was competent to pass upon this legal proposition, when requested to by the parties. The plaintiff in error waived the grounds upon which he was entitled to a new trial. The court did not err in overruling the motion for a new trial, and in rendering a judgment upon the verdict. The judgment of the district court is affirmed. All the judges concurring.

(7 Kan. App. 648)

PLEASANT GROVE TP. v. WARE. (Court of Appeals of Kansas, Southern Department, C. D. July 13, 1898.) DEFECTIVE HIGHWAY-PLEADING.

The petition examined, and held to state a cause of action.

(Syllabus by the Court.)

Error from district court, Greenwood county; C. A. Leland, Judge.

Action by Alfred R. Ware against the Pleasant Grove township to recover for injuries sustained by reason of a defective highway. Plaintiff had judgment, and defendant brings error. Affirmed.

T. L. Davis, for plaintiff in error. R. P. Kelley, W. S. Marlin, and Clogston & Fuller, for defendant in error.

DENNISON, P. J. This action was commenced by Alfred R. Ware against Pleasant Grove township, in the district court of Greenwood county, Kan., to recover for damages sustained by him by reason of a defective highway in said township. The petition alleges that the township negligently and carelessly permitted certain defects to exist in its highway. It alleges that said road was not laid on the line designated by the viewers as adopted by the county commissioners, and that said road was fenced off on less desirable land, and that the fences along said road were then in the highway, said road being made thereby too narrow for safe and convenient travel; that the corner post where said road then diverged from a westerly direction to a southerly direction was then out in said highway about 20 feet, so that the same became and then was an obstruction to safe public travel; that there was a ditch near to said corner extending lengthwise with said road, causing public travel to keep near to said south fence on said road running westward towards said corner; "that north of said ditch, and near to said ditch, there was a hedgerow, brush, and fence, which interfered with public travel over said part of said road; that said fences on both the east and west sides of said road, where it diverges southward from said corner, were built several feet out on said roadway, and all the said encroach

ments, defects, and obstructions, made the said corner difficult and dangerous to pass and turn; that plaintiff at said time, and on or about the 13th day of December, 1889, and without contributory negligence to the injury hereinafter mentioned, was driving along said highway, and by reason of said defects, carelessly and negligently permitted to be and exist then and there more than five days prior to that time, and with the full knowledge of the trustee of said township, was unable to safely pass and turn said corner, and his wagon was overturned, and plaintiff thereby thrown to the ground, whereby, and solely by reason of said defects, plaintiff's leg was broken and his wagon injured; that plaintiff has been to great expense in caring for and doctoring said broken limb, and has been damaged in the sum of $300 for his doctors' bills; that plaintiff has lost time to the sum of $1,800; that plaintiff was damaged thereby in pain and suffering and permanent injury to his limb and body in the sum of $5,000; that plaintiff's damage to his wagon thereby sustained was and is $25."

While the allegations of the petition are crudely framed, they state a cause of action in favor of the plaintiff and against the defendant therein, under section 48 of chapter 42 of the General Statutes of 1897. The court did not err in overruling the demurrer to this petition. The jury returned a verdict, and judgment was rendered for the plaintiff below in the sum of $800. The rulings of the court in overruling the motion for a new trial and in rendering judgment were not excepted to; therefore we cannot review those rulings. The judgment of the district court is affirmed.

(7 Kan. App. 663)

REXROAD et al. v. KANSAS FIRST
MORTG. CO.

(Court of Appeals of Kansas, Southern Depart-
ment, C. D. July 13, 1898.)
APPEAL-RECORD-MOTION FOR NEW TRIAL.
The record contains no ruling upon the
motion for a new trial, and no copy of the jour-
nal entry of judgment, and we cannot pass up-
on the errors set out in the petition in error.
(Syllabus by the Court.)

Error from district court, Reno county; F. L. Martin, Judge.

Action by the Kansas First Mortgage Company against George N. Rexroad and Bert Mathias. Judgment for plaintiff, and defendAffirmed. ants bring error.

C. M. Williams, for plaintiffs in error. H. Whiteside, for defendant in error.

error (defendants below); second, that the court erred in overruling motion for a new trial, filed by plaintiffs in error in the court below; third, that the court erred in giving judgment for the Kansas First Mortgage Company, when it ought to have been given for the plaintiffs in error." If the court errs in sustaining a demurrer, it must be given a chance to correct the errors by a motion for a new trial. The record contains no ruling upon the motion for a new trial. We cannot decide that the court erred in overruling the motion for a new trial, for we are not advised as to what his ruling was. The record contains no copy of the journal entry of judgment. We doubt whether the papers attached to the petition in error constitute a valid case-made. The judgment of the district court is affirmed.

(7 Kan. App. 674)

RUMSEY v. KIOWA TOWN CO. (Court of Appeals of Kansas, Southern Department, C. D. July 13, 1898.) DISMISSAL-REINSTATEMENT.

Where the plaintiff's action was dismissed, and the case was continued for trial upon the defendant's counterclaim, and where at the second term of court thereafter, over the objections of the defendant, the plaintiff's action was reinstated upon a motion containing no grounds or reasons for such reinstatement, held

error.

(Syllabus by the Court.)

Error from district court, Barber county; G. W. McKay, Judge.

Action by A. W. Rumsey against the Kiowa Town Company. The action, having been dismissed, was reinstated. Plaintiff had judgment, and defendant brings error. Reversed.

Chester I. Long, for plaintiff in error. C. W. Ellis, for defendant in error.

MILTON, J. The single question presented by the record is: Did the court err in reinstating the plaintiff's case after its dismissal without prejudice, at the request of the plaintiff? The dismissal was made at the November, 1892, term of court, and the motion to reinstate was filed at the May, 1893, term, the February term intervening. The defendant had set up a counterclaim exceeding the amount claimed by the plaintiff, and. after the plaintiff's action was dismissed, insisted upon a trial of the issue raised by the counterclaim. A trial was had, the jury disagreed, and was discharged. The court ordered "that the cause of action of defendant against plaintiff, as set out in his answer, be continued to the next term of this court." At the February term the trial upon the counterclaim was continued to the May term. At the latter term the plaintiff's case was reinstated on motion, over the objection of the defendant; and a jury trial was had, resulting in a verdict and judgment in favor of the plaintiff for the amount of its claim.

Counsel for plaintiff in error says: "When the court made the order dismissing plaintiff's cause of action, and when the term of court at which the order was made finally ended without any further proceedings having been taken to reinstate plaintiff's cause of action, the court was without jurisdiction at a subsequent term to modify or change the order so made." To this, counsel for defendant in error responds: "This would undoubtedly be true were it not for the fact that the plaintiff in error had filed a counterclaim for $608.70, which he insisted upon having tried, and which he had a right to have tried, notwithstanding the plaintiff had dismissed his cause of action. This counterclaim kept both parties in court." It thus appears that no controversy exists touching the rule of law generally applicable in respect to dismissals. Is the present case an exceptional one, as claimed by the defendant in error? We think the last question must be answered in the negative. Under the Code, a dismissal is a judgment. Moore v. Toennison, 28 Kan. 433. Considering the dismissal in this case as a judgment, there was no power in the trial court to set the same aside, and reinstate the plaintiff's action at a term subsequent to that at which the judgment was rendered upon a mere motion, which contained none of the grounds mentioned in section 601 of the Code of Civil Procedure. State v. Sowders, 42 Kan. 312, 22 Pac. 425; Johnson v. Jones, 58 Kan. 745, 51 Pac. 224; Pierson v. Benedict, 5 Kan. App. 790, 48 Pac. 996. The judgment of the

district court is reversed.

1. Certain facts held sufficient to establish the existence of an agency.

2. Since equity regards that as done which ought to have been done, the enforcement of a judgment of a district court of this state, which the judgment creditor had promised to satisfy, may properly be enjoined by another district court, when such promise is supported by a legal consideration.

3. "A person for whose benefit a promise to another, upon a sufficient consideration, is made, may maintain an action on the contract in his own name against the promisor." ton v. Larkin, 13 Pac. 398, 36 Kan. 246. (Syllabus by the Court.)

Bur

Error from district court, Butler county; C. W. Shinn, Judge.

Suit by J. W. Tedford against A. J. Holderman and others for an injunction restraining the enforcement of a judgment. There was a decree for plaintiff, and defendants Holderman and W. T. Clancey bring error. Affirmo 1.

G. P. Aikman, for plaintiffs in error. Lafayette Knowles, for defendant in error.

MILTON, J. In the district court of Kingman county, A. J. Holderman, one of the plaintiffs in error, obtained a judgment against the makers of a promissory note, and for the foreclosure of a written instrument equivalent to a mortgage upon real estate, and which instrument secured the payment of the said note. The defendant in error and W. T. Clancey, one of the plaintiffs in error, were two of the judgment debtors in the action. The liability of Clancey arose from his indorsement of the note, it having been made payable to Clancey & Co. The defendants therein, except one Pollard, who was served by publication, had each waived the issuance and service of summons, and did not in any wise defend. The land was sold by the sheriff under the judgment for two-thirds of its appraised value, one of the judgment debtors bidding it in for Holderman at the request of Clancey, at the lowest possible price under the appraisement. Thereafter, Holderman and Clancey caused an order of garnishment to issue to the sheriff of Reno county, and service of process was there duly made upon the Atchison, Topeka & Santa Fé Railroad Company, as garnishee, and upon Tedford, who resided. in that county, for the purpose of enforcing the collection of a balance of $106.43 yet unpaid upon the judgment. Before the company had paid over the money due from it to Tedford, he commenced this action in the district court of Butler county, where Holderman and Clancey resided, joining with them the railroad company as defendants. The company's demurrer to the petition was overruled, and it filed no other pleadings, and did not further appear in the action. The court granted a perpetual injunction, as prayed for by Tedford, restraining the defendants Holderman and Clancey from enforcing, or attempting to enforce, the judgment against Tedford, and the railroad company from paying the judgment, or any part thereof, under the order of garnishment. The evidence was very conflicting.

Tedford alleged that he and the other defendants, except Clancey, were kept from bidding upon the land, which was worth more than the amount of the original judgment, by the promise and assurance of Clancey that the personal judgment would be released after the sale of the land, and that Clancey was the agent of Holderman. The evidence showed that Clancey and Holderman were partners in a banking business, of which the latter was the manager, and that their bank owned the note and mort. gage which formed the basis of the original action. We think this sufficiently estab lished the agency of Clancey in respect to the note and mortgage and the suit thereon.

Plaintiffs in error contend that this action is a collateral attack upon the judgment rendered in Kingman county, and that one