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they are interested. Each are relieved from any and all liability incident to the mortgage.

2. The second claim is that the petition does not state a cause of action. It is not necessary to recite these facts again, for the inference is too plain, from what we have said concerning the first cause of demurrer, that the petition alleges a cause of action. It may not be stated as fully in detail, and with that precision of statement and averment so desirable in a pleading, but all the essential statements constituting a cause of action are embraced. There is no error in the ruling of the court below on the demurrer, and we recommend that the judgment be affirmed.

BY THE COURT. It is so ordered; all the justices concurring.

(38 Kan. 224)


(Supreme Court of Kansas. January 7, 1888.) 1. TRIAL-DEMURRER TO EVIDENCE-MOTION FOR NEW TRIAL.

Where a demurrer to the evidence is sustained, it is proper practice for the trial

court to entertain a motion by the defeated party for a new trial, 2. SAME.

Where a demurrer to the evidence of the plaintiff is erroneously sustained, and the plaintiff files a motion for a new trial, the court should grant the same. (Syllabus by the Court.)

Error to district court, Atchison county; DAVID MARTIN, Judge.

B. P. Waggener, for plaintiff in error. Tomlinson & Eaton, for defend. ant in error.

VALENTINE, J. This was an action brought by Charles H. Goodrich, administrator of the estate of William Olson, deceased, against the Missouri Pacific Railway Company, to recover for personal injuries received by Olson, and alleged to have been caused by the negligence of the railway company. A trial was had before the court and a jury, and, after the plaintiff had introduced all his evidence and rested, the defendant demirred to the evidence, upon the ground that it did not prove any cause of action; and the court below sustained the demurrer. Afterwards, and within proper time, the plaintiff filed a motion for a new trial, upon various grounds, which motion the court below sustained, and granted the new trial asked for; and this is the only ruling of which the plaintiff in error, defendant below, now complains.

The plaintiff in error, defendant below, presents to this court two alleged errors, to-wit: (1) “The court below had no power to entertain a motion for a new trial after it had sustained a demurrer to the evidence and entered judgment. There is no authority given in the statute for such a proceeding.” (2) “The court below erred in sustaining the motion for a new trial, because, of the pleadings and the evidence, the action of the court in sustaining the demurrer to the evidence was right.” We think the court below had power to entertain the motion for a new trial. Such is proper practice. Indeed, unless a motion is made for a new trial, after a demurrer to evidence has been sustained, the supreme court could not consider any errors of law committed by the court during the trial. Gruble v. Ryus, 23 Kan. 195, 196; Pratt v. Kelley, 24 Kan. 111, 112. Neither do we think that the second point made by the plaintiff in error is tenable. A demurrer to evidence admits every fact and every conclusion which the evidence most favorable to the other party tends to prove. Christie v. Barnes, 33 Kan. 317, 318, 6 Pac. Rep. 599. And generally, where a new trial has been granted, the supreme court will require a much stronger case, before it will interfere and reverse, than where a new trial nas been refused. City of Ottawa v. Washabaugh, 11 Kan. 124, 127. We think the court below erred in sustaining the demurrer to the evidence,

and, therefore, that it did not err in granting the new trial. We think it is not necessary to comment upon the evidence.

The judgment of the court below will be affirmed. (All the justices concurring.)

(38 Kan. 259)

REILEY et al. 0. HAYNES.

(Supreme Court of Kansas. January 7, 1888.) 1. REPLEVIN-WHEN ACTION MAINTAINABLE-AGAINST OFFICER.

An action of replevin can be maintained against an officer for the recovery of the possession of personal property that he holds by virtue of an order of delivery, previously issued in another action, provided the person who commences the second action is not a party to the first. The case of Gross v. Bogard, 18 Kan. 288, cited


Declarations by a party to the action, in possession of personal property, as to her ownership thereof, accompanying some principal fact which they serve to explain and qualify, are sometimes said to be a part of the res gestæ, but, as the admissibility of such declarations are an exception to the general rule that the declarations of a party are not competent evidence in his own behalf, they should only be allowed

with all the limitations and restrictions imposed upon them.” 3. TRIAL-OBJECTIONS TO EVIDENCE-REVIEW ON APPEAL.

The only way to have the improper answers of a witness to proper questions reviewed in this court is to move to strike out the answers, or so much thereof as are

deemed to be improper, and take them from the consideration of the jury. (Syllabus by Simpson, C.)

Commissioners' decision. Error to district court, Atchison county; EDWARD HUTCHINSON, Judge.

Noble & Bullen, for plaintiffs in error. Cooper & Cooper and Van Natta & Close, for defendant in error.

SIMPSON, C. The plaintiffs in error commenced an action of replevin in Republic county district court against James H. Haynes and George Schaaf for the recovery of the possession of certain specific personal property, alleging that they were entitled to the possession of said property by virtue of default in the terms and conditions of certain chattel mortgages executed by Haynes and Schaaf to them on said property. While this action was pending and undetermined, Martha J. Haynes, the wife of James H. Haynes, who claims to be the absolute owner of the property, commenced her action in replevin to recover the possession of the identical property from T. C. Reiley, the sheriff of the county, who held the property by virtue of the writ in the first action, and Richard Hunter, who was plaintiff in the first action, and to whom the chattel mortgages had been given. The case was tried to a jury at the June term, 1886, of the district court of Republic county, and there was a verdict and jndgment for Mrs. Haynes for the recovery of the possession of the property,-its value at the time of detention being found at $867.50,-and damages for detention, the sum of $290, and costs. A motion for a new trial

1 At common law, where the parties are the same, replevin cannot be maintained for property in custodia legis. Railroad Co. v. Hamilton, 16 Fed. Rep. 181.

2 As to the admissibility of declarations as part of the res gestæ, see Patterson v. Railway Co., (Mich.) 19 N. W. Rep. 761; Merkle v. Bennington Tp., (Mich.) 24 N. W. Rep. 776; Armil v. Railroad Co., (Iowa,) 30 N. W. Rep. 42; Conlan v. Grace, (Minn.) Id. 880; Clunie v. Lumber Co., (Cal.) 7 Pac. Rep. 708; Edmunds v. Curtis, (Colo.) 9 Pac. Rep. 793; Durkee v. Railroad Co., (Cal.) Id. 99; Boxes of Opium v. U. S., 23 Fed. Rep. 367; Brown v. Kenyon, (Ind.) 9 N. E. Rep. 283; Porter v. Waltz, (Ind.) 8 N. E. Rep. 705;

Express Co. v. Rawson, (Ind.) 6 N. E. Rep. 337; County of Tompkins v. Bristol, (N. Y.) 1 N. E. Rep. 878; Hallahan v. Railroad Co., (N. Y.) 6 N. E. Rep. 287; Citizens' Co. v. O'Brien, (III.) 8 N. E. Rep. 310; Mitchell y. Colglazier, (Ind.) 7 N. E. Rep. 199; Williamson v. Railroad Co., (Mass.) 10 N. E. Rep. 790; Insurance Co. v. La Pointe, (I.) 8 N. E. Rep. 353; Martin v. Railroad Co., (N. Y.) 9 N. E. Rep. 505; Railroad Co. v. Wood, (Ind.) 14 N. E. Rep. 572; Railroad Co. v. Moore, (Tex.) 6 S. W. Rep. 631; Bealor v. Hahn, (Pa.) 11 Atl. Rep. 776; Mayes v. Power, (Ga.) 4 S. E. Rep. 681.

was overruled, and the case is here with several assignments of error occurring during the trial.

1. The first is (and it is doubtful on the record whether it was ever raised and passed upon by the court below) that at the time of the commencement of this action the specific personal property was in the custody of the court, and that by the reason of that fact replevin at the suit of a third party would not lie. This identical question was passed upon by the court in the case of Gross v. Bogard, 18 Kan. 288, and, as Mrs. Haynes claims adversely to both her husband and Hunter, the decision controls this action. Mrs. Haynes can maintain this action in replevin against the officer and Hunter, at whose suit the former process issued, under which the sheriff claims possession.

2. The next proposition of counsel is that the evidence is not sufficient to entitle Mrs. Haynes to recover. If we should undertake to determine this question in a precise and formal manner, it would be the trial of issues of fact in this court. The jury and the trial court have determined that there was sufficient evidence to entitle her to a recovery. If there is any evidence to support the finding of the jury and the judgment of the court, it is sufficient here. We shall not weigh the evidence, or undertake to determine the credibility of the witnesses. There were no special findings required of the jury. The general instructions of the court to the jury were not excepted to, and the whole record of the proceedings denote that there was a free, fair, and full trial, with considerable latitude allowed in the introduction of evidence; so that we have no doubt but that both the court and jury were fully advised as to all the facts in the case.

3. It is said that the testimony of Mackay, Julius Beecher, Ole Beecher, A. C. McPherson and Charles Blackburn, or, rather, certain parts of it, ought not to have been permitted to go to the jury. They are statements of persons living in the neighborhood of Mrs. Haynes who had known her ever since she came to Republic county, who testified to the declarations of herself and her husband, when they first moved into the neighborhood, as to the ownership of this specific personal property. That she had always claimed to be the owner of it,--had always said so. That it was generally understood in the neighborhood that she was the owner. That by reason of these things it was a matter of reputation, generally known, that she was the owner of the stock. Haynes was her second husband, and she owned the stock before her inarriage to him. That these statements as to the ownership were made while the stock was in the possession of Mrs. Haynes; as well by her as by her husband. That she had borrowed money in town on the fact of her ownership. These facts all had a tendency to support her claim, and divest the jury of an impression that her claim of ownership was being used for the sole purpose of saving the property from a chattel mortgage executed by her husband, Declarations by a party in possession of personal property as to the ownership thereof, accompanying some principal fact which they serve to explain and qualify, are sometimes said to be a part of the res gesta. Stone v. Bird, 16 Kan. 488, and authorities cited. This case will be found to be very similar, in the particular features we are now considering, to the one at bar; and all the criticisms of Mr. Justice BREWER on the manner in which the objections to the evidence was presented in that case apply with equal force in this. The single issue in this case is, was Mrs. Haynes the owner, and entitled to the possession, of the property in suit? Her declarations while she was in possession of the property, made for successive years before this controversy arose, was some evidence to go to the jury, under the proper limitations and restrictions, in support of that issue. So the declarations of Haynes, with the same safeguards, might go in evidence, and those of George Schaaf are permissible, for they are both parties to the inquiry, represented by the sheriff; and their declarations in disparagement of their own title, and in support of that of Mr. nes while in possession and control of the property, can be

shown. But this rule must be kept within safe and reasonable limits, and it is extended too far when witnesses are allowed to state the common understanding of the neighborhood, or the general reputation as to ownership. This was done by several witnesses in their answers to questions to which they did not make direct responses. But there was no motion to strike out such answers, and withdraw them from the jury. The necessity for such a course was very clearly pointed out by the court in the case of Stone v. Bird, and it is stated that a mere objection to its reception was not enough; but not even that was done in this case. When an improper answer is given to a legitimate question, or where a part of the answer is improper, the party complaining must move to strike out the answer, or the part he considers improper, in order to have it reviewed in this court. In this case witnesses were allowed to make remarks, and refer to the knowledge of the neighborhood, and make statements about “reputation of ownership,” by addition to proper answers to questions, and, possibly, in one or two instances to ques. tions so framed that such answers could be made. But these things are all mixed up with what appears to be the other and material matter, and we cannot say affirmatively that there is error.

We recommend that the judgment of the district court of Republic county be affirmed.

BY THE COURT. It is so ordered; all the justices concurring.

(38 Kan. 299)

St. Louis & S. F. Ry. Co. o. DEFORD, Sheriff.


The service of a summons against a railway company, upon its section foreman, as “a local superintendent of repairs,” where it appears that the company has not designated any person or officer upon whom service could be made under the pro

visions of section 68a, p. 613, Comp. Laws 1985, is a valid service upon the company. (Syllabus by the Court.)

Error to district court, Greenwood county; CHARLES B. GRAVES, Judge.

Kirkpatrirk & Vestal and John O'Day, for plaintiff in error. D. B. Fuller, for defendant in error.

HORTON, C. J. On October 27, 1884, D. K. Collins recovered a judgment against the St. Louis & San Francisco Railway Company, for $15, as the value of a certain cow alleged to have belonged to him, and to have been killed by the engines and cars of the company, together with an attorney's fee of $15, and the further sum of $19 as costs. A transcript of the judgment was filed in the office of the clerk of the district court of Elk county, upon which an execution was afterwards issued, directed to C. H. Deford, the sheriff of Greenwood county, whereupon the railway company filed its petition in the district court of Greenwood county, asking that C. H. Deford be restrained and enjoined from proceeding to collect the judgment, assigning as its reason therefor that the judgment under which the execution issued was void. It was admitted at the hearing of the case that no appearance had ever been entered in the original case; that the railway company had not waived the issuance and service of the summons, and that the only service which was had upon the company was by a summons being delivered to one of its section foremen in Elk county. The injunction was refused, and a final judgment rendered in favor of Deford, from which order and judgment the railway company brings its case here.

The only question presented is whether the service of the summons upon the section foreman was a valid service upon the railway company. The objection to the service is that the section foremnan is not one of the persons or

officers designated in section 68a, p. 613, Comp. Laws 1885. It was admitted upon the trial that no person had ever been appointed by the railway company, in Elk county, upon whom process and notices issued against the company might be served, under the provisions of section 689, p. 613, Comp. Laws 1885. It was also admitted that the railway ran across the corner of Elk county for the distance of six miles; that the company had no depot or station in the county; that there was no person or officer in the county upon whom service could be made, other than the section foreman; that the section foreman was a person in charge of a gang of from three to five men; that his duties were to carry out the instructions of the road-master, with reference to keeping the road-bed and superstructure in repair, on a division about six miles in length; that it was the duty of the section foreman and the men under his charge to repair broken rails, or put in a tie, where the same appeared necessary, without being specifically directed so to do by the roadmaster. The trial court held that the service of a summons upon the section foreman was valid, upon the ground that he was a local superintendent of repairs. We perceive no error in this ruling. A superintendent, says Worcester, is “one who superintends; a director; an overseer. A local superintendent of repairs is one whose duties are confined or limited to a particular county, city, town, place, district, or section. Generally the section foreman carries out the instructions of his division road-master, as to the district or section under his charge, but he has, also, authority, as overseer, to repair the road by putting in new rails or ties, when it is necessary so to do, without any specific directions therefor. He is, therefore, for all purposes, a local superintendent of repairs. It is claimed that by the local superintendent of repairs is meant only persons or officers of a railway company who direct and control certain departments or divisions of its business,-like master carpenters, road-masters, master mechanics, etc.,—yet many of such persons or officers are bound to carry out the instructions of higher officials, with reference to their duties; and, for some purposes, the section foreman, or boss, directs and controls, in a limited way, the repairs over the district or section under his charge. It is further claimed that if the construction given by the trial court to the statute be sustained, the railway company will be subject to severe hardships, as section foremen's headquarters are often situated at places remote from telegraph stations, post-oflìces, or other places affording them an opportunity of notifying the officer whose duty it is respond thereto; and that they are often wholly ignorant of the nature and purposes of judicial writs, and of the importance of their being forwarded at once to their superior offices. A sufficient answer to this is contained in section 68a, p. 613, Comp. Laws 1885, which requires every railway company to designate some person, residing in each county through which its road runs, or in which its business is transacted, on whom all process and notices issued by any court of record or justice of the peace of such county may be served. If any railway company does not wish process issued against it to be served upon its section foreman, freight agents, etc., it can relieve itself from having service made in this way by designating, in each county into which its road runs, or it does business, a person upon whom service shall be made, as required by the provisions of said section 68a.

The judgment of the district court will be affirmed. (All the justices concurring.)

(38 Kan. 359)

ST. LOUIS & S. F. Ry. Co. v. RIERSON.


A judgment for damages and costs was recovered against a railway company for failing to construct a cattle-guard where the railroad enters the premises of the

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