Gambar halaman

dition of a judgment upon those facts, was correct.

Upon the remainder of the assignments of error, which challenge an investigation of the evidence, the attention of the court is called to the fact that the evidence is not certified here in such a manner as to justify this court in examining it with a view to a re versal of the judgment. It is averred, upon the objection to the consideration of any question arising upon the evidence, that it has not been preserved in a case-made. At the conclusion of the testimony it is stated that "both sides rest," and that, there being no more testimony by either side, the "case closes." Thereupon a request was made by the attorney for the defendant that the court make "findings," upon which findings of fact and conclusions of law were made by the court, and thereafter the stenographer appended his certificate that "the foregoing is a true and correct transcript of all the testimony of witnesses, rulings of court, objections and exceptions of counsel, taken by me in shorthand in the above-entitled cause." It has been repeatedly held that where a case is made and settled for the supreme court, and the party making it desires that it shall be shown that the case contains all the evidence that was introduced at the trial, a statement to that effect should be inserted in the case itself. In settling and signing the case, the judge of the district court certified that: "Said case-made is true, and contains a full and true and correct transcript and statement of all the pleadings, with the indorsements thereon, and of all orders, judgments, and proceedings filed, made, rendered, and had in said case; also, that Exhibit A, attached to said case-made, contains true and correct copies of all the pleadings, with the indorsements thereon, and of all the orders, judgments, and proceedings filed, made, rendered, and had in case No. 1,657, entitled ‘Edward F. Gould vs. Richard H. Wade.' And I hereby settle, allow, certify, and sign the same as true and correct." And it was said in Bartlett v. l'eeney, 11 Kan. 444, that a statement of fact not inserted in the casemade, but merely certified to by the judge at the time of signing and settling the case, would not be considered by the supreme court. And it was said in Brown v. Johnson, 14 Kan. 290, that: “The signature of the judge to a case-made or a bill of exceptions imports the truthfulness of the preceding statements in such case or bill,-nothing more; and we must look to those statements to see whether all of the testimony is preserved or not.” And in Eddy v. Weaver, 37 Kan. 540, 15 Pac. 492, the court said that: "It is the case itself, and not the certificate of the judge, which should show whether all the evidence introduced on the trial is contained in the case or not.” And that: “Where a case is made and settled for the supreme -court, and the party making it desires that is shall be shown that the case contains all

the evidence that was introduced on the trial, a statement to that effect should be inserted in the case itself, and not in the certificate of the judge who settles the case.” The court said, in substance, that the duty of the judge was to see that the statements of fact made in the case-made were correct, before settling the same, and to see that the case spoke the truth when it was settled. This was affirmed in Insurance Co. v. Hogue, 41 Kan. 527, 21 Pac. 641; the court saying that the case must contain the recital that it contained all the evidence offered at the trial, and not the certificate of the judge who settles the case. Hill v. Bank, 42 Kan. 366, 22 Pac. 324. And in State v. Harper Co. Com'rs, 43 Kan. 196, 23 Pac. 102, it was said that: “There is no statement or showing in the case-made brought to this court that it contains all of the evidence submitted to the judge. There is a statement to that effect in the certificate attached to the case-made; but, as has been repeatedly held, this is insufficient, and hence the question of whether the decision is sustained by the evidence is not before us." Which was again affirmed in Lebold v. Bank, 51 Kan, 381, 22 Pac. 1103. This rule was thoroughly and fully adopted before our adoption of the present Code from the Civil Procedure of Kansas, and the interpretations of that court will be accepted here, and we therefore hold that the evidence is not here so certified as to justify its examination for error.

After the filing of the brief of the defendant in error in this court on May 26, 1899, a motion was filed by the plaintiff in error, to wit, on May 31, 1899, to amend the casemade by attaching therein, between pages 57 and 58, as amended page 5712, the following words: “ 'The within and foregoing contains all the evidence given and submitted at the trial of the case in the district court, and all the pleadings, motions, rulings, findings of fact, and conclusions of law had, made, and submitted therein,' for the reason, to wit, that (1) because said case-made purports to and does contain all the evidence, pleadings, and findings and conclusions and rulings had and submitted therein; and (2) because the defendant could not be prejudiced by such amendment; and (3) in furtherance of justice.” A case-made for the supreme court cannot be amended or supplemented in the supreme court by inserting anything therein or attaching anything thereto which did not belong to the case-made, and constitute a part thereof, when it was originally settled and signed by the judge and attested by the clerk below. The decision of the trial judge as to the truthfulness of the case-made is conclusive and final,-at least, until the certified record is shown to be intentionally false, and to have been fraudulently prepared, or that there was a want of jurisdiction in the court. Ryland v. Coyle, 7 Okl. 226, 54 Pac. 456. The judgment will be affirmed. All the justices concur.

(6 Idaho, 621)

wife, were residing upon said land at the date KNEEN v. HALIN et ux.

of the execution of said mortgage by the hus(Supreme Court of Idaho. Nov. 9, 1899.)

band, and that the wife did not join in the PURCHASE-PRICE MORTGAGE-SIGNING BY

execution of said mortgage. Respondents WIFE-COMMUNITY PROPERTY.

rely upon the provisions of section 2921, Rev. 1. Where H. made settlement upon the public St., which section is as follows: "No estate domain subject to the pre-emption laws of the in the homestead of a married person, or in United States, and made pre-emption filing for the same, and resided thereon with his wife, and any part of the commul..y property occupied thereafter, wbile so residing thereon with bis as a residence by a married person can be said wife, he borrowed money of K. with which

conveyed or incumbered by act of the party, to pay the government price for said land, and executed a mortgage to secure the payment of

unless both husband and wife join in the exthe same to K., and thereafter on the same day ecution of the instrument by which it is so made his final proof for said land, and paid the conveyed or incumbered, and it be acknowl. government price therefor from the money 80

edged by the wife as provided in chapter III. borrowed, said mortgage is a purchase-price mortgage, and is a valid lien on said land, wheth

of this title.” It is contended that said 160 er signed by the wife or not, and is prior to any acres of land was community property. If it right she may have to said land as community

was community property at the date said property by reason of having resided thereon at the date of the execution of said mortgage.

mortgage was executed, the mortgage created 2. The term “price of real property,

as used

no lien on the land. in section 3336, Rev. St., is the money paid for The first question to be determined, then, real property on the debt created by the purchase thereof.

Is, was said real estate community property

at the date of the execution of said mort(Syllabus by the Court.)

gage? It is admitted that respondents were Appeal from district court, Latah county;

residing on said land when said mortgage W. G. Piper, Judge.

was executed. It is admitted that respondAction by Charles O. Kneen against Gustav

ent Gustav J. Halin made his pre-emption filJ. Halin and Charlotte Halin. Judgment for

ing for said land at the proper United States defendants, and plaintiff appeals. Reversed.

land office, and thereafter established his resEdgar C. Steele and S. S. Denning, for ap- idence, with his said wife, upon said land; pellant. George W. Goode, for respondents. that the time arrived for him to make his

final proof for said land, and pay the governSULLIVAN, J. This is an action to fore- ment price therefor, which was $200. The close a mortgage on 160 acres of land situ- government was the owner of and held the ated in Latah county. The case was submit- title to said land until said final proof was ted to the trial court upon an agreed stipu- made, and the price paid therefor. Title to lation of facts, and judgment went in favor public lands subject to pre-emption could only of the defendants, who are respondents here. be acquired by a full compliance with the The appeal is from the judgment and order pre-emption laws of congress as to settledenying a new trial.

ment, residence, improvements, final proof, The stipulated facts are substantially as and payment of the government price therefollows: In February, 1891, the defendants, for. All of these acts must be done before husband and wife, resided upon the 160 acres the claimant could get or legally demand of land described in the complaint, upon title from the government. In the case at which the husband had previously made a bar, before the claimant made his final proof, pre-emption filing under the laws of the Unit and paid for said land, he had mortgaged it ed States. That on the 27th day of said to the appellant for the express purpose of month the defendant Gustav J. Halin bor. procuring the purchase money to be paid the rowed from the appellant $250, and gave 'his government, and expenses connected with promissory note, secured by mortgage on said making final proof for said land. While it land. The wife did not join in either the is true the defendant Halin had an inchoate note or mortgage. Said money was borrowed right in said land after bis for and setwith the express agreement that it should tlement on said land so long as he complied be used in payment to the government for with the pre-emption laws of congress, yet the purchase price of said land, and that stip- such right did not ripen into a title until the ulation as recited in the mortgage is as fol- last requirements of said laws had been comlows: "This loan is made for the purpose plied with, to wit, making final proof and of paying the U. S. government for the with- payment of money. He did not own said in-described tract of land." It is also stipu- land until said proof and payment were lated that said defendant did make his final made, and the community could not own it proof for said land, and that the money so before that time. Hence we conclude that borrowed was used in paying the government said real estate was not community property price therefor, to wit, $1.25 per acre, amount- at the time said mortgage was executed, and ing to $200, and that the balance of the the mortgage lien is prior to any right of money so borrowed was used in payment of the wife. The mortgage was executed on the land-office expenses and witnesses' expenses 27th day of February, 1891, and thereafter, incurred in making said final proof. The de on that day, Halin made his final proof for 'fense to this action is based on the grounds said land, and paid for the same out of the that the respondents, who were husband and money so borrowed. Under the laws of this state all property acquired by the husband appointment of a receiver in the action; and an after marriage, except that acquired by gift,

order made by the judge after such appearance, bequest, devise, or descent, is community

without notice to the defendant, is without ju

risdiction and void. property. See sections 2496, 2497, Rev. St. 2. Certiorari lies to annul an order appointA mortgage given by the husband for the ing a receiver which was made on ex parte appurchase price of real estate has priority over

plication after appearance of the defendant in

the action. any statutory right of the wife in such real

(Syllabus by the Court.) estate. Section 3336, Rev. St., provides that: "A mortgage given for the price of real prop

Proceedings by Charles H. Cummings and erty at the time of the conveyance bas pri

others against Edgar C. Steele, judge, and ority over all other liens created against the

others, to review an order granted by the purchaser subject to the operation of the re

judge. Order annulled. cording laws." Said real property was not Geo. W. Tapnahill and I. N. Smith, for community property at the date of the exe- plaintiffs. cution of said mortgage, and the mortgage lien is prior to any right of the wife acquired by reason of its becoming community prop- QUARLES, J. This is a proceeding to reerty thereafter. It became community prop- view an order appointing one D. H. Haner erty subject to the lien of said purchase-price receiver in an action brought in the district mortgage. But it is urged that the appel- court in and for Nez Perce county by N. S. lant was not the vendor, and therefore could Soper, plaintiff, against Charles H. Cumnot have a purchase-money mortgage on said mings and s. T. Jones, defendants, made by land; in other words, no one but a vendor the district judge after the defendants had can have a purchase-money mortgage. In appeared in the action. The motion for said support of that proposition counsel for re- order was heard, and the order made, withspondents cites Austin v. Underwood, 37 Ill. out notice to the defendants. The said de439. In that case the term "purchase money" fendants commenced this proceeding to reis defined as meaning “money paid for land view said order on the ground that no notice or the debt created by the purchase.” It is of the application therefor had been given also held' in that case that where a party pur- | defendants, for which reason the district chases land adjoining a homestead, to be used judge had no jurisdiction to make it. The as a part thereof, and procures the purchase original action was commenced in the dismoney of a third person as a loan to the pur- trict court, Nez Perce county, July 25, 1899. chaser, the money thus paid by the lender On August 2, 1899, said defendants appeared will be regarded as purchase money of the in the action and filed their demurrer, after land as against the homestead claim of the which, and on August 3, 1899, application purchaser. It is stated in the notes to sec- ex parte was made for the order appointing tion 2898, Civ. Code Cal. (which section is the a receiver, and the receiver appointed withsame as section 3336, Rev. St., above quoted), out notice to the defendant. The rule in reas follows: "This rule applies even where gard to notice in such case is that after apthe mortgage is made to a third person, who, pearance such notice must be given, except as a part of the same transaction, advances

in case of emergency, when the defendant the purchase money.” Numerous authorities has absconded, and material injury will reare then cited sustaining the rule there an- sult to plaintiff unless the order be forthwith nounced. See, also, 4 Kent, Comm. p. 39; Smith, made. No such showing was made in the Homest. 88 218, 221. In 1 Jones, Mortg. $ case before us. The order was therefore 464, inter alia, it is stated as follows: "A pur- made without jurisdiction, and therefore chase-money mortgage, is good and effectual void. See Rev. St. 88 4020, 4892; High, Rec. against the wife of the mortgagor without 88 111 to 117, inclusive; Larsen v. Winder her joining in the execution of it,”—and that

(Wash.) 44 Pac. 123, and authorities there this rule applies even where the mortgage is cited. made to a third person. See, also, Prout v. The affidavit of the plaintiff presented and Burke (Neb.) 70 N. W. 512. The judgment used on the hearing of the motion for the of the court below is reversed, and the cause

order appointing a receiver ends with the remanded, with instructions to proceed in ac- following statement, to wit: “That on this cordance with the views expressed in this 1st day of August, 1899, the said defendants, opinion. Costs of this appeal are awarded Chas. H. Cummings and S. T. Jones, have to the appellant.

appeared generally, by their attorney, George

W. Tannahill, filing and serving a demurrer HUSTON, C. J., and QUARLES, J., concur.

to said complaint in said action.” The de

murrer mentioned had on August 1st been (6 Idaho, 666)

served, but was not filed until August 2d. CUMMINGS et al. v. STEELE, Judge, et al.

Notwithstanding the statement in said affi

davit above quoted, the district judge, in (Supreme Court of Idaho. Nov. 28, 1899.)

his return herein, says: “Prior to said apCERTIORARI-RECEIVER-NOTICE-VOID ORDER.

pointment, to wit, on August 2d, the defend1. After appearance in the action, the de- ants, by their attorney, George W. Tannafeudant is entitled to notice of motion for the hill, filed at Lewiston, Idaho, where said cause was pending, a demurrer to said com- from the rest of the cattle purchased by plaint, of which the said judge had no knowl. Traves, and driven away by defendant to edge at the time of making said order." the premises of his brother, some three or

For the reasons herein given, the order four miles from the place of delivery, and made by the defendant, as district judge, at there left by defendant. The balance of the chambers, at Moscow, Idaho, on the 7th day cattle purchased by Traves of Smith were of August, 1899, in the action of N. S. Soper, taken by Traves across the river to British plaintiff, against Charles H. Cummings et Columbia. It would seem that some dispute al., defendants, appointing D. H. Haner re- arose subsequently between Smith and Traves ceiver, and directing the duties to be per- touching the sale between them, and Smith formed by the said receiver, should be an- thereupon went and took possession of the nulled, and it is so ordered. Costs awarded 11 head of cattle purchased by defendant of to plaintiffs.

Traves, and drove them to his (Smith's) own

ranch, and held them, against the protest and HUSTON, C. J., and SULLIVAN, J., con- demand of the defendant, until about the cur.

last of March or the first of April, 1898, when he sold them to the plaintiff, who took them

to British Columbia, where they were replev. (6 Idaho, 669)

ied by the defendant, and are still held by COUCH V. MONTGOMERY.

him. There is no question of the bona fides (Supreme Court of Idaho. Nov. 7, 1899.) of the purchase either of the plaintiff or deSALE-CHANGE OF POSSESSION.

fendant; but appellant contends that, the S. sold and delivered a certain number of sale from Traves to the defendant not havcattle to T. After such sale and delivery, T.

ing been followed by an immediate delivery sold and delivered to the defendant 11 head of said cattle. Defendant took possession of the

and an actual and continued change of poscattle so sold to him, and placed them in the session, such sale was void, as against the custody of his brother. Subsequently, a ques. plaintiff, under the provisions of section 3021 tion having arisen between S. and T. in regard to a balance claimed by S. from T. upon the sale

of the Revised Statutes of Idaho. We are between them, S., without the knowledge or con- not in accord with appellant's construction of sent of defendant, seized and took into his pos- the statute. It is evident from the record session the cattle sold by T. to defendant. Held

that after the purchase of the cattle by that, the continuity of defendant's possession having been broken by the unlawful act of

Traves from Smith, and the delivery of the plaintiff's vendor, plaintiff cannot invoke the pro- same to Traves, and the payment therefor by visions of section 3021, Rev. St., to defeat de

Traves, he (Traves) sold and delivered to refendant's title.

spondent 11 head of said cattle, and that re(Syllabus by the Court.)

spondent paid for them; that there was an Appeal from district court, Kootenai coun

actual delivery of the cattle so purchased by ty; A. E. Mayhew, Judge.

respondent; that respondent took the same Action by William Couch against Zachariah into his possession, and removed them to the Montgomery Judgment for defendant, and

ranch of his brother; that subsequently, and from the judgment, and an order denying a

without the knowledge or consent of respondnew trial, plaintiff appeals. Affirmed.

ent, Smith took said cattle from the possesCharles L. Heitman, for appellant. John sion of respondent and sold them to plainB. Goode, for respondent.

tiff. Smith could acquire no title by such un

lawful act; and to hold that a void title in HUSTON, C. J. Plaintiff brought suit the vendor could ripen into a good and valid against defendant to recover the value of 8 title in the vendee, simply because the vendee head of cattle alleged to have been converted was an innocent purchaser for value, is ab. by defendant. Defendant denied ownership surd. There was an actual delivery, and the or right of possession of plaintiff to the cat- possession of respondent would have been tle, and averred ownership in himself. The "continuous," but for the unlawful acts of case was tried before the district court, with Smith. The statute was not intended to aid a jury, and verdict rendered for the defend- or cover frauds, but to prevent fraud. There ant. From the judgment entered upon the is not anything in the record showing, nor verdict, and from the order denying plain- do we understand it is contended, that there tiff's motion for a new trial, the plaintiff was any privity of interest between Smith appeals.

and respondent, or that respondent ever acThe facts in the case, as they appear from quiesced in or consented to the acts of Smith the record, are about as follows: On the in taking and holding possession of the cat28th day of September, 1897, one Sam Smith tle. There is some conflict of evidence upon sold to one E. C. Traves a bunch of cattle, immaterial matters, but the weight of the for a stipulated price per head. On or about evidence sustains the facts as we have hereOctober 10, 1897, 61 head of the cattle so in given them; and, the jury having so found, sold by Smith to Traves were delivered to their conclusion will not be disturbed. Traves at a point on the Kootenai river, as There are various and numerous assignper agreement. After such delivery by Smith ments of error by appellant, going to the adto Traves, the defendant purchased of Traves mission of testimony and the instructions to 11 head of said cattle, which were segregated the jury. We have examined them with considerable care, but can find nothing in them shows any change before passing the house of warranting a reversal. The instructions giv- representatives. (3) That sections 1 and 2 en by the court we think state the law cor- of said act require no maximum punishment. rectly, and are fully as favorable to appel- (4) That section 4 of said act violates section lant as the case would warrant, and we find 13, art. 1, of the constitution of the state of nothing contradictory therein. Finding no re- Idaho, which declares that no person shall be versible error in the record, the judgment deprived of property without due process of of the district court is affirmed, with costs to law. (5) That section 5 of said act is unrespondent.

constitutional, in this: that it is in conflict

with section 17 of article 1 of the constitution QUARLES and SULLIVAN, JJ., concur. of the state of Idaho, which provides as fol

lows: “The right of the people to be secure On Rehearing.

in their persons, houses, papers and effects (Nov. 28, 1899.)

against unreasonable searches and seizures

shall not be violated, and no warrant shall isPER CURIAM. Appellant bas filed a peti

sue without probable cause shown by affidavit tion for rehearing, which we have carefully particularly describing the place to be searchexamined. We find no question of law or

ed and the person or thing to be seized.' (6) fact in the petition which we did not con- That section 7 of said act is unconstitutional, sider on the hearing. No reason being shown

in this: that it is in conflict with section 13, why a rehearing should be granted, the peti- art. 1, of the constitution of the state of Idation therefor is denied.

ho. (7) That the facts stated in the said complaint do not constitute a public offense. (8)

That the said act was not passed by the leg(6 Idaho, 617)

islature of the state of Idaho as provided and STATE Y. MULKEY.

required by the constitution of the state of (Supreme Court of Idaho. Oct. 30, 1899.) Idaho." GAMBLING-CONSTITUTIONAL LAW-REVIEW The act in question, known as the "AntiON APPEAL.

Gambling Act,” is found at pages 389, 390, 1. Act Feb. 6, 1899, known as the "AntiGambling Act,held valid.

Sess. Laws 1899. The record before us does 2. When the defendant in a criminal action not contain any of the evidence introduced at attacks certain sections of an act as violative of the trial, except a duly-certified transcript of the constitution, and it does not appear from the

the house and senate journals relating to the record that any of his rights affected by said sections were involved on the trial or by the

passage of said act by the legislature. The judgment, there remaining (should the sections record before us shows that the defendant was so attacked be eliminated) sufficient to consti- convicted upon a specific charge of conducttute a valid act that supports the judgment, the

ing a game played with cards, to wit, a game court will not pass on the validity of the sections so attacked.

of "faro." It does not appear that any of his (Syllabus by the Court.)

property was seized or destroyed; hence it is Appeal from district court, Idaho county;

unnecessary to pass upon the validity of secEdgar C. Stecle, Judge.

tions 4, 5, 6, 7, and 8 of said act. If said sec

tions be void (which we seriously doubt), as Horace B. Vulkey was convicted of gambling, and appeals. Affirmed.

claimed by the appellant, the remaining sec

tions would, under the provisions of section James W. Reid, for appellant. S. H. Hays, 16, art. 3, of the constitution, be valid, if conAtty. Gen., for the State.

stitutionally passed; as, eliminating these five

sections, there would remain sufficient to conQUARLES, J. The appellant was charged stitute a valid act which would support the with the offense of gambling, by criminal judgment of conviction. This disposes of apcomplaint, in the probate court of Idaho coun- pellant's first, fourth, and fifth assignments of ty, and was tried and convicted; whereupon error. he appealed to the district court, was again Touching the second assignment of error, tried, and convicted; and from the judgment an inspection of the record shows that it is of conviction in said district court he has ap- based upon the idea that the engrossed bill is pealed to this court.

different from the printed bill. This contenThe errors assigned by appellant are as fol- tion is not sustained by the record. The leglows: "(1) That the act under the provisions -islative journals, as shown by the transcript, whereof this action is prosecuted, entitled 'An do not set forth the printed bill, but do show act to prohibit gambling and to provide for that the bill was printed. The journal of the punishment thereof and for other pur- the senate also shows that one of the senators poses,' approved February 6, 1899, is unconsti- who opposed the passage of the bill claimed tutional and void as to sections 4, 5, 6, 7, and that the bill was not correctly printed, for the 8 thereof, for that the subject of said act as reason that the word “testifying," in section 7, set out in the title thereof is not embraced

appeared as “testimony" in the printed bill. in the title of said bill. (2) That the said The senate did not take this view of the mat. act as engrossed is different from said act as ter. Upon the record before us the presumpprinted by order of the house of representa- tion is that the bill was correctly printed, tives, and no reported printed amendment and this assignment of error is not sustained.

59 P.-2

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