Gambar halaman
PDF
ePub

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 reversal 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. Feeney, 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 pre- ceding 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 572, 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 there'n 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.

(C Idaho, 621)

KNEEN v. HALIN et ux. (Supreme Court of Idaho. Nov. 9, 1899.) PURCHASE-PRICE MORTGAGE-SIGNING BY WIFE-COMMUNITY PROPERTY.

1. Where H. made settlement upon the public domain subject to the pre-emption laws of the United States, and made pre-emption filing for the same, and resided thereon with his wife, and thereafter, while so residing thereon with his said wife, he borrowed money of K. with which to pay the government price for said land, and executed a mortgage to secure the payment of the same to K., and thereafter on the same day made his final proof for said land, and paid the government price therefor from the money so borrowed, said mortgage is a purchase-price mortgage, and is a valid lien on said land, whether signed by the wife or not, and is prior to any right she may have to said land as community property by reason of having resided thereon at the date of the execution of said mortgage.

2. The term "price of real property,' as used in section 3336, Rev. St., is the money paid for real property on the debt created by the purchase thereof.

(Syllabus by the Court.)

Appeal from district court, Latah county; W. G. Piper, Judge.

Action by Charles O. Kneen against Gustav J. Halin and Charlotte Halin. Judgment for defendants, and plaintiff appeals. Reversed.

Edgar C. Steele and S. S. Denning, for appellant. George W. Goode, for respondents.

SULLIVAN, J. This is an action to foreclose a mortgage on 160 acres of land situated in Latah county. The case was submitted to the trial court upon an agreed stipulation of facts, and judgment went in favor of the defendants, who are respondents here. The appeal is from the judgment and order denying a new trial.

The stipulated facts are substantially as follows: In February, 1891, the defendants, husband and wife, resided upon the 160 acres of land described in the complaint, upon which the husband had previously made a pre-emption filing under the laws of the United States. That on the 27th day of said month the defendant Gustav J. Halin borrowed from the appellant $250, and gave his promissory note, secured by mortgage on said land. The wife did not join in either the note or mortgage. Said money was borrowed with the express agreement that it should be used in payment to the government for the purchase price of said land, and that stipulation as recited in the mortgage is as follows: "This loan is made for the purpose of paying the U. S. government for the within-described tract of land." It is also stipulated that said defendant did make his final proof for said land, and that the money so borrowed was used in paying the government price therefor, to wit, $1.25 per acre, amounting to $200, and that the balance of the money so borrowed was used in payment of land-office expenses and witnesses' expenses incurred in making said final proof. The defense to this action is based on the grounds that the respondents, who were husband and

wife, were residing upon said land at the date of the execution of said mortgage by the husband, and that the wife did not join in the execution of said mortgage. Respondents rely upon the provisions of section 2921, Rev. St., which section is as follows: "No estate in the homestead of a married person, or in any part of the commuy property occupied as a residence by a married person can be conveyed or incumbered by act of the party, unless both husband and wife join in the execution of the instrument by which it is so conveyed or incumbered, and it be acknowledged by the wife as provided in chapter III. of this title." It is contended that said 160 acres of land was community property. If it was community property at the date said mortgage was executed, the mortgage created no lien on the land.

The first question to be determined, then, is, was said real estate community property at the date of the execution of said mortgage? It is admitted that respondents were residing on said land when said mortgage was executed. It is admitted that respondent Gustav J. Halin made his pre-emption filing for said land at the proper United States land office, and thereafter established his residence, with his said wife, upon said land; that the time arrived for him to make his final proof for said land, and pay the government price therefor, which was $200. The government was the owner of and held the title to said land until said final proof was made, and the price paid therefor. Title to public lands subject to pre-emption could only be acquired by a full compliance with the pre-emption laws of congress as to settlement, residence, improvements, final proof, and payment of the government price therefor. All of these acts must be done before the claimant could get or legally demand title from the government. In the case at bar, before the claimant made his final proof, and paid for said land, he had mortgaged it to the appellant for the express purpose of procuring the purchase money to be paid the government, and expenses connected with making final proof for said land. While it is true the defendant Halin had an inchoate right in said land after his filing for and settlement on said land so long as he complied with the pre-emption laws of congress, yet such right did not ripen into a title until the last requirements of said laws had been complied with, to wit, making final proof and payment of money. He did not own said land until said proof and payment were made, and the community could not own it before that time. Hence we conclude that said real estate was not community property at the time said mortgage was executed, and the mortgage lien is prior to any right of the wife. The mortgage was executed on the 27th day of February, 1891, and thereafter, on that day, Halin made his final proof for said land, and paid for the same out of the money so borrowed. Under the laws of this

In

state all property acquired by the husband after marriage, except that acquired by gift, bequest, devise, or descent, is community property. See sections 2496, 2497, Rev. St. A mortgage given by the husband for the purchase price of real estate has priority over any statutory right of the wife in such real estate. Section 3336, Rev. St., provides that: "A mortgage given for the price of real property at the time of the conveyance has priority over all other liens created against the purchaser subject to the operation of the recording laws." Said real property was not community property at the date of the execution of said mortgage, and the mortgage lien is prior to any right of the wife acquired by reason of its becoming community property thereafter. It became community property subject to the lien of said purchase-price mortgage. But it is urged that the appellant was not the vendor, and therefore could not have a purchase-money mortgage on said land; in other words, no one but a vendor can have a purchase-money mortgage. support of that proposition counsel for respondents cites Austin v. Underwood, 37 Ill. 439. In that case the term "purchase money" is defined as meaning "money paid for land or the debt created by the purchase." It is also held in that case that where a party purchases land adjoining a homestead, to be used as a part thereof, and procures the purchase money of a third person as a loan to the purchaser, the money thus paid by the lender will be regarded as purchase money of the land as against the homestead claim of the purchaser. It is stated in the notes to section 2898, Civ. Code Cal. (which section is the same as section 3336, Rev. St., above quoted), as follows: "This rule applies even where the mortgage is made to a third person, who, as a part of the same transaction, advances the purchase money." Numerous authorities are then cited sustaining the rule there announced. See, also, 4 Kent, Comm. p. 39; Smith, Homest. §§ 218, 221. In 1 Jones, Mortg. § 464, inter alia, it is stated as follows: "A purchase-money mortgage, is good and effectual against the wife of the mortgagor without her joining in the execution of it,"-and that this rule applies even where the mortgage is made to a third person. See, also, Prout v. Burke (Neb.) 70 N. W. 512. The judgment of the court below is reversed, and the cause remanded, with instructions to proceed in accordance with the views expressed in this opinion. Costs of this appeal are awarded to the appellant.

HUSTON, C. J., and QUARLES, J., concur.

(6 Idaho, 666)

CUMMINGS et al. v. STEELE, Judge, et al. (Supreme Court of Idaho. Nov. 28, 1899.)

CERTIORARI-RECEIVER-NOTICE-VOID
ORDER.

1. After appearance in the action, the defendant is entitled to notice of motion for the

appointment of a receiver in the action; and an order made by the judge after such appearance, without notice to the defendant, is without jurisdiction and void.

2. Certiorari lies to annul an order appointing a receiver which was made on ex parte application after appearance of the defendant in the action.

(Syllabus by the Court.)

Proceedings by Charles H. Cummings and others against Edgar C. Steele, judge, and others, to review an order granted by the judge. Order annulled.

Geo. W. Tannahill and I. N. Smith, for plaintiffs.

QUARLES, J. This is a proceeding to review an order appointing one D. H. Haner receiver in an action brought in the district court in and for Nez Perce county by N. S. Soper, plaintiff, against Charles H. Cummings and S. T. Jones, defendants, made by the district judge after the defendants had appeared in the action. The motion for said order was heard, and the order made, without notice to the defendants. The said defendants commenced this proceeding to review said order on the ground that no notice of the application therefor had been given defendants, for which reason the district judge had no jurisdiction to make it. The original action was commenced in the district court, Nez Perce county, July 25, 1899. On August 2, 1899, said defendants appeared in the action and filed their demurrer, after which, and on August 3, 1899, application ex parte was made for the order appointing a receiver, and the receiver appointed without notice to the defendant. The rule in regard to notice in such case is that after appearance such notice must be given, except in case of emergency, when the defendant has absconded, and material injury will result to plaintiff unless the order be forthwith made. No such showing was made in the case before us. The order was therefore made without jurisdiction, and therefore void. See Rev. St. §§ 4020, 4892; High, Rec. §§ 111 to 117, inclusive; Larsen v. Winder (Wash.) 44 Pac. 123, and authorities there cited.

The affidavit of the plaintiff presented and used on the hearing of the motion for the order appointing a receiver ends with the following statement, to wit: "That on this 1st day of August, 1899, the said defendants, Chas. H. Cummings and S. T. Jones, have appeared generally, by their attorney, George W. Tannahill, filing and serving a demurrer to said complaint in said action." The demurrer mentioned had on August 1st been served, but was not filed until August 2d. Notwithstanding the statement in said affidavit above quoted, the district judge, in his return herein, says: "Prior to said appointment, to wit, on August 2d, the defendants, by their attorney, George W. Tannahill, filed at Lewiston, Idaho, where said

cause was pending, a demurrer to said complaint, of which the said judge had no knowledge at the time of making said order."

For the reasons herein given, the order made by the defendant, as district judge, at chambers, at Moscow, Idaho, on the 7th day of August, 1899, in the action of N. S. Soper, plaintiff, against Charles H. Cummings et al., defendants, appointing D. H. Haner receiver, and directing the duties to be performed by the said receiver, should be annulled, and it is so ordered. Costs awarded to plaintiffs.

HUSTON, C. J., and SULLIVAN, J., con

cur.

(6 Idaho, 669)

COUCH v. MONTGOMERY.
(Supreme Court of Idaho. Nov. 7, 1899.)

SALE-CHANGE OF POSSESSION.

S. sold and delivered a certain number of cattle to T. After such sale and delivery, T. sold and delivered to the defendant 11 head of said cattle. Defendant took possession of the cattle so sold to him, and placed them in the custody of his brother. Subsequently, a question having arisen between S. and T. in regard to a balance claimed by S. from T. upon the sale between them, S., without the knowledge or consent of defendant, seized and took into his possession the cattle sold by T. to defendant. Held that, the continuity of defendant's possession having been broken by the unlawful act of plaintiff's vendor, plaintiff cannot invoke the provisions of section 3021, Rev. St., to defeat defendant's title.

(Syllabus by the Court.)

Appeal from district court, Kootenai county; A. E. Mayhew, Judge.

Action by William Couch against Zachariah Montgomery. Judgment for defendant, and from the judgment, and an order denying a new trial, plaintiff appeals. Affirmed.

Charles L. Heitman, for appellant. John B. Goode, for respondent.

HUSTON, C. J. Plaintiff brought suit against defendant to recover the value of 8 head of cattle alleged to have been converted by defendant. Defendant denied ownership or right of possession of plaintiff to the cattle, and averred ownership in himself. The case was tried before the district court, with a jury, and verdict rendered for the defendant. From the judgment entered upon the verdict, and from the order denying plaintiff's motion for a new trial, the plaintiff appeals.

The facts in the case, as they appear from the record, are about as follows: On the 28th day of September, 1897, one Sam Smith sold to one E. C. Traves a bunch of cattle, for a stipulated price per head. On or about October 10, 1897, 61 head of the cattle so sold by Smith to Traves were delivered to Traves at a point on the Kootenai river, as per agreement. After such delivery by Smith to Traves, the defendant purchased of Traves 11 head of said cattle, which were segregated

from the rest of the cattle purchased by Traves, and driven away by defendant to the premises of his brother, some three or four miles from the place of delivery, and there left by defendant. The balance of the cattle purchased by Traves of Smith were taken by Traves across the river to British Columbia. It would seem that some dispute arose subsequently between Smith and Traves touching the sale between them, and Smith thereupon went and took possession of the 11 head of cattle purchased by defendant of Traves, and drove them to his (Smith's) own ranch, and held them, against the protest and demand of the defendant, until about the 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 replevied by the defendant, and are still held by him. There is no question of the bona fides of the purchase either of the plaintiff or defendant; but appellant contends that, the sale from Traves to the defendant not having been followed by an immediate delivery and an actual and continued change of possession, such sale was void, as against the plaintiff, under the provisions of section 3021 of the Revised Statutes of Idaho. We are not in accord with appellant's construction of the statute. It is evident from the record that after the purchase of the cattle by Traves from Smith, and the delivery of the same to Traves, and the payment therefor by Traves, he (Traves) sold and delivered to respondent 11 head of said cattle, and that respondent paid for them; that there was an actual delivery of the cattle so purchased by respondent; that respondent took the same into his possession, and removed them to the ranch of his brother; that subsequently, and without the knowledge or consent of respondent, Smith took said cattle from the possession of respondent and sold them to plaintiff. Smith could acquire no title by such unlawful act; and to hold that a void title in the vendor could ripen into a good and valid title in the vendee, simply because the vendee was an innocent purchaser for value, is absurd. There was an actual delivery, and the possession of respondent would have been "continuous," but for the unlawful acts of Smith. The statute was not intended to aid or cover frauds, but to prevent fraud. There is not anything in the record showing, nor do we understand it is contended, that there was any privity of interest between Smith and respondent, or that respondent ever acquiesced in or consented to the acts of Smith in taking and holding possession of the cattle. There is some conflict of evidence upon immaterial matters, but the weight of the evidence sustains the facts as we have herein given them; and, the jury having so found, their conclusion will not be disturbed.

There are various and numerous assignments of error by appellant, going to the admission of testimony and the instructions to the jury. We have examined them with con

siderable care, but can find nothing in them warranting a reversal. The instructions given by the court we think state the law correctly, and are fully as favorable to appellant as the case would warrant, and we find nothing contradictory therein. Finding no reversible error in the record, the judgment of the district court is affirmed, with costs to respondent.

QUARLES and SULLIVAN, JJ., concur.

On Rehearing.

(Nov. 28, 1899.)

PER CURIAM. Appellant has filed a petition for rehearing, which we have carefully examined. We find no question of law or fact in the petition which we did not consider on the hearing. No reason being shown why a rehearing should be granted, the petition therefor is denied.

(6 Idaho, 617)

STATE v. MULKEY. (Supreme Court of Idaho. Oct. 30, 1899.) GAMBLING-CONSTITUTIONAL LAW-REVIEW ON APPEAL.

1. Act Feb. 6, 1899, known as the "AntiGambling Act," held valid.

2. When the defendant in a criminal action attacks certain sections of an act as violative of the constitution, and it does not appear from the record that any of his rights affected by said sections were involved on the trial or by the judgment, there remaining (should the sections so attacked be eliminated) sufficient to constitute a valid act that supports the judgment, the court will not pass on the validity of the sections so attacked.

(Syllabus by the Court.)

Appeal from district court, Idaho county; Edgar C. Stede, Judge.

Horace B. Mulkey was convicted of gambling, and appeals. Affirmed.

James W. Reid, for appellant. S. H. Hays, Atty. Gen., for the State.

QUARLES, J. The appellant was charged with the offense of gambling, by criminal complaint, in the probate court of Idaho county, and was tried and convicted; whereupon he appealed to the district court, was again tried, and convicted; and from the judgment of conviction in said district court he has appealed to this court.

The errors assigned by appellant are as follows: "(1) That the act under the provisions whereof this action is prosecuted, entitled 'An act to prohibit gambling and to provide for the punishment thereof and for other purposes,' approved February 6, 1899, is unconstitutional and void as to sections 4, 5, 6, 7, and 8 thereof, for that the subject of said act as set out in the title thereof is not embraced in the title of said bill. (2) That the said act as engrossed is different from said act as printed by order of the house of representatives, and no reported printed amendment 59 P.-2

shows any change before passing the house of representatives. (3) That sections 1 and 2 of said act require no maximum punishment. (4) That section 4 of said act violates section 13, art. 1, of the constitution of the state of Idaho, which declares that no person shall be deprived of property without due process of law. (5) That section 5 of said act is unconstitutional, in this: that it is in conflict with section 17 of article 1 of the constitution of the state of Idaho, which provides as follows: "The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrant shall issue without probable cause shown by affidavit particularly describing the place to be searched and the person or thing to be seized.' (6) That section 7 of said act is unconstitutional, in this: that it is in conflict with section 13, art. 1, of the constitution of the state of Idaho. (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 legislature of the state of Idaho as provided and required by the constitution of the state of Idaho."

The act in question, known as the "AntiGambling Act," is found at pages 389, 390, Sess. Laws 1899. The record before us does not contain any of the evidence introduced at the trial, except a duly-certified transcript of the house and senate journals relating to the passage of said act by the legislature. The record before us shows that the defendant was convicted upon a specific charge of conducting a game played with cards, to wit, a game of "faro." It does not appear that any of his property was seized or destroyed; hence it is unnecessary to pass upon the validity of sections 4, 5, 6, 7, and 8 of said act. If said sections be void (which we seriously doubt), as claimed by the appellant, the remaining sections would, under the provisions of section 16, art. 3, of the constitution, be valid, if constitutionally passed; as, eliminating these five sections, there would remain sufficient to constitute a valid act which would support the judgment of conviction. This disposes of appellant's first, fourth, and fifth assignments of

error.

Touching the second assignment of error, an inspection of the record shows that it is based upon the idea that the engrossed bill is different from the printed bill. This contention is not sustained by the record. The legislative journals, as shown by the transcript, do not set forth the printed bill, but do show that the bill was printed. The journal of the senate also shows that one of the senators who opposed the passage of the bill claimed that the bill was not correctly printed, for the reason that the word "testifying," in section 7, appeared as "testimony" in the printed bill. The senate did not take this view of the matter. Upon the record before us the presumption is that the bill was correctly printed, and this assignment of error is not sustained.

« SebelumnyaLanjutkan »