(38 Kan. 216) SWEENEY V. MERRILL. (Supreme Court of Kansas. January 7, 1888.) 1. NEGLIGENCE-FIRES. Where the defendant set out a fire within his inclosed field, and it escaped from him and destroyed the property of plaintiff, he will not be liable unless he is guilty of negligence either in setting out the fire or attempting to control it. 2. SAME. Where the defendant set out a fire in his inclosed field, on a calm morning, and after the fire had started the wind changed, and a little whirlwind carried the fire beyond his control, and destroyed plaintiff's property, he will not be deemed negligent because he did not anticipate a change in the action of the wind. 3. SAME. If such fire would, after escaping, have certainly in any event destroyed the property of plaintiff, an effort by defendant to have protected such property by back-firing is immaterial. It then becomes simply a question of whether the defendant was careful or negligent in setting out the fire, or attempting to control it. 4. TRIAL INSTRUCTIONS-AMBIGUITY. Where an instruction is not entirely free from ambiguity, but does not by a reasonable construction state the law incorrectly, it will not be deemed reversible error when the correct rule of law concerning the same evidence is given in the instruction next following. (Syllabus by Holt, C.) Commissioners' decision. Error to district court, Pottawatomie county; R. B. SPILMAN, Judge. Michael Sweeney brought this action against L. G. Merrill for the burning of plaintiff's stacks by a fire started on defendant's land. Judgment for defendant. Plaintiff brings error. J. T. Bradley and Thos. Fairchild, for plaintiff in error. A. H. Case, for defendant in error. HOLT, C. In March, 1885, the defendant in error, who was also defendant below, set fire to some corn-stalks in his inclosed field, which escaped and swept over to the meadow of the plaintiff towards his stacks. The defendant, going into the meadow, set a back fire to protect plaintiff's stacks, but the fire escaping from him burned them. Either the back-fire or the original fire burned up the fence posts of the plaintiff. He brought his action before a justice of the peace, and upon appeal it was tried in the Pottawatomie district court, at the October term, 1885, to a jury. Verdict for defendant, and judgment rendered thereon. Plaintiff brings the case here, and in his brief his complaint is of the instructions of the court. The court, in substance, instructed that before plaintiff could recover, he must show by a preponderance of the evidence that the defendant was guilty of negligence in setting out the fire, or in not preventing it from spreading beyond his own land. The court defined the degree of negligence that must exist as ordinary negligence, being an absence or want of that degree of care which men of common prudence generally exercise in their own affairs. The plaintiff contends that because fire is a dangerous element, any one using it must exercise extraordinary care in its use. We do not think his contention is correct. We believe that it is only necessary for the defendant to have used ordinary care in setting out the fire within his own inclosure, and in preventing its escape to the land of others. Of course, each case of this kind is to be determined to a great extent upon its own peculiar circumstances, and the acts that might be proper care in one case, in another case, under different circumstances, might not be sufficient. To that extent only the question of negligence is a question of fact for the jury, the measure of negligence or prudence first being defined by the court. In this particular case the defendant was burning off his lot, preparing it for cultivation, and set the fire upon a calm morning. After the fire had started the wind veered and there were puffs of wind, and a little whirlwind that carried the fire beyond his control. It could not be imputed to the defendant for negligence, because he did not anticipate such a change of the wind. The plaintiff further complains of the following instruction: "If, however, you find from the evidence that the original fire, set out by the defendant for the purpose of burning stalks on his own land, would, in any event, certainly have caused the burning of the hay-stacks and posts of the plaintiff, then it is wholly immaterial that the defendant undertook to protect the hay-stacks by back-firing, and failed in the attempt, by negligence or otherwise. In such case you need only inquire whether the defendant was guilty of negligence in setting out the original fire, or in not preventing it from spreading beyond his own land; and if you should find from the evidence that he was not guilty of such negligence, you will find for the defendant." It restricts the finding in favor of plaintiff to the negligence of the defendant in setting out the original fire, or in not preventing it from spreading from his own land, provided that in any event the fire first set out would have destroyed the property of plaintiff, without any reference to the attempt of defendant to protect the stacks by back-firing. It provides that if he negligently set out the fire, or if he set it out properly, and negligently allowed it to escape from his control, then, in any event, the defendant would have been liable. In other words. if the plaintiff was guilty of negligence in setting out the fire, or in his attempted control of it, and the fire would have surely burned the stacks of plaintiff anyhow, it was immaterial whether he was diligent or negligent in attempting to save the property by back-firing, for the reason that in any event such property would have been destroyed. We perceive no error in this instruction prejudicial to the plaintiff. Instruction number five was as follows: "If the fire originally set out in defendant's corn-stalks had spread from the defendant's land, and was continuing to spread so as in all probability to endanger the hay-stacks of the plaintiff, then the defendant had a right to set out a fire on the land of plaintiff to protect such hay-stacks by back-firing; and if the hay-stacks were destroyed by such back-fire so set out by defendant, the defendant would not be liable therefor if he exercised that degree of care which ought reasonably to have been used under the circumstances." This is the most serious question for consideration in this case. The plaintiff claims that it authorizes the jury to find a verdict for the defendant, even though the defendant was negligent in setting out the fire, or permitting it to escape beyond his land, if afterwards he exercised due care in setting out the back-fire. If the instruction necessarily bears this construction, it is erroneous. But does it mean what the plaintiff claims? It does not say so in plain terms. If it is inferred, it is an inference that does not necessarily arise from the language of the instruction. The instruction might be held to mean that he would not be liable for the destruction of the hay-stacks by the back-fire, if he exercised reasonable diligence in setting it out. The most we feel like saying is that the instruction was not so plain and unambiguous as it might have been. Moreover, the instruction immediately following this lays down the rule very clearly in regard to the measure of care required, wherein it provides that either negligence in setting out the fire, or allowing it to escape, was sufficient each of itself to sustain an action against defendant. The testimony brought here seems to fairly show that the defendant exercised ordinary care in setting out the fire; did what he possibly could in preventing its escape and spread upon the land of plaintiff; and then, after consulting with others whom he called to his aid to protect the property of plaintiff, pursued what seemed to them all the best policy in attempting to save the stacks by back-firing. We perceive no material error in the instructions of the court. These are the sole errors complained of, and therefore we recommend an affirmance of the judgment. BY THE COURT: It is so ordered; all the justices concurring. (38 Kan. 283) WOODWARD v. TRASK FISH Co. JUSTICE OF THE PEACE-PROCEDURE-MOTION FOR NEW TRIAL. Where a motion for a new trial before a justice of the peace is filed the day following the rendition of a verdict, and due notice of the same is given, the holding of the motion under consideration and for decision by the justice of the peace until the ninth day after the verdict is only an irregularity, which may be waived. Scott v. Kreamer, 37 Kan. ante, 123. (Syllabus by the Court.) Error to district court, Saline county; S. O. HINDS, Judge. This action was brought by the Trask Fish Company against John E. Woodward in a justice's court, where judgment was given for the defendant. The case was taken to the district court, where the judgment was reversed. The defendant brings error. Section 110 of the Justices' Code, (Comp. Laws Kan. 1885, c. 81, § 110,) referred to in the opinion, reads as follows: "The justice before whom a cause has been tried, on motion of the party aggrieved, at any time within five days after the decision or verdict, shall vacate the decision or verdict, and grant a new trial, for the same reasons, and upon the same terms and conditions, as provided in the Code of Civil Procedure in like causes; and he shall set a time for a new trial, of which the opposite party shall have at least three days' notice." Lovitt & Sturman, for plaintiff in error. John Foster, for defendant in error. JOHNSTON, J. The Trask Fish Company brought this action before R. H. Bishop, a justice of the peace of Saline county, to recover $12.05 from J. E. Woodward, for merchandise sold and delivered. A trial was had with a jury, and on May 15, 1886, a verdict awarding one dollar to Woodward was rendered. A motion for a new trial was filed on the following day, which was set down for hearing on May 21st, when the motion was heard and taken under advisement by the justice until May 24, 1884. At that time the justice, with both parties present, overruled the motion for a new trial; to which the fish company excepted, and Wood ward then remitted the one dollar awarded him by the verdict of the jury. A bill of exceptions was made by the Trask Fisk Company, and the case taken to the district court on error. The court reversed the judgment of the justice of the peace, awarded judgment for costs in favor of the Trask Fish Company, and set the case down for trial and final judgment in that court. Of this judgment Woodward now complains. The contention of plaintiff in error here is that before the district court can review the rulings and judgment of the justice of the peace, a motion for a new trial must have been made and overruled; and it is claimed that this was not done. He argues that by reason of the provisions of section 110 of the justices' code the justice of the peace had no authority to grant a new trial after the expiration of five days from the rendition of the verdict and judgment; and it is insisted that if the justice had no jurisdiction to consider or grant the motion, the district court had no authority to review and reverse the rulings of the justice. It is true, the motion for a new trial was not finally disposed of until the ninth day after the verdict was given. The record shows, however, that the motion was made, and a notice given, on the day following the return of the verdict, and it was through no fault of the company that the motion was held for consideration and decision beyond the five days. The company, having, in good time, done what was required to obtain a new trial, ought not to be deprived of the right because the justice continued the cause a few days beyond the statutory period. It was determined in the recent case of Scott v. Kreamer, 37 Kan., ante, 123, that the action of a justice of the peace, in granting a new trial more than five days after the verdict or decision had been given, was irregular, but not void. That case rules the present one. Woodward made no objection to the justice's holding the motion for consideration and deciding the same more than five days after the verdict; although present in court when the motion was granted, he took no exceptions or steps to correct the irregularity. On that occasion he not only stood by and acquiesced in the act of the justice, but he also recognized and invoked the jurisdiction of the justice by procuring the entry of an order remitting the one dollar awarded him by the jury. Under the ruling in Scott v. Kreamer, supra, the granting of the new trial was only an irregularity, and one of which the plaintiff in error cannot now avail himself. Judgment affirmed. (All the justices concurring.) (38 Kan. 220) HEMPHILL v. HEMPHILL. (Supreme Court of Kansas. January 7, 1888.) DIVORCE-PRACTICE-SERVICE OF SUMMONS BY PUBLICATION-Opening Decree. A party against whom a decree of divorce was rendered, without other service than by publication in a newspaper, can commence proceedings to have the same vacated within six months after its rendition, and be let in to defend, upon complying with the provisions of section 77, Civil Code. Lewis v. Lewis, 15 Kan. 181, cited and distinguished. (Syllabus by Simpson, C.) Commissioners' decision. Error to district court, Saline county; S. O. HINDS, Judge. Ettie Hemphill obtained a divorce from John Hemphill, who moved to set aside the decree; which motion being denied, he brought error. The case comes within Comp. Laws Kan. 1885, c. 80, § 77, which enacts as follows: "A party against whom a judgment or order has been rendered, without other service than by publication in a newspaper, may, at any time within three years after the date of the judgment or order, have the same opened, and be let in to defend. Before the judgment or order shall be opened, the applicant shall give notice to the adverse party of his intention to make such an application, and shall file a full answer to the petition, pay all costs, if the court require them to be paid, and make it appear to the satisfaction of the court, by affidavit, that during the pendency of the action he had no actual notice thereof in time to appear in court and make his defense," etc. J. G. Mohler, for plaintiff in error. Moore & Quinby, for defendant in error. SIMPSON, C. The district court of Saline county refused to vacate a decree of divorce it had rendered, in an action pending between these parties, on the fifteenth day of February, 1886; notice to vacate having been served on the twenty-eighth day of May following. The motion enumerated several causes for the vacation of the decree, and among them were these: That the judgment was rendered without other service than by publication in a newspaper; that John Hemphill had no actual notice of the pendency of the action in time to appear in court and make his defense; that he had a good and valid defense to the action; and that he had filed a full answer to the petition. He supported his motion to vacate by an affidavit alleging that in the fall of 1882, with the knowledge and by the consent of his wife, he went to Santa Fe, New Mexico, to take charge of a gang of laborers on a railroad as foreman, to enable him to earn money to support his family; that in July, 1883, his wife came to see him there; that in December, 1883, he went to Prescott, Arizona, seek ing employment, and duly advised his wife of his change of location, and remained in correspondence with her until she ceased to write him; that he continued to write her, but received no answers; that, after she ceased to write, he sent her a package of goods by express from Prescott; that during all this time he frequently received copies of the two most widely circulated newspapers published at Salina, where his wife resided all this time; that a brother of his wife, living at Salina, was a regular correspondent with him all this time, and he believed that his wife knew the fact that her brother knew his post-office address; that he also corresponded with one Snead, of Salina, all this time, and that his wife could easily have ascertained his post-office address by inquiry in the town of these persons; that he did not know of the pendency of the divorce suit until the eighteenth of February, 1886, and he then left Arizona, and came to Salina, and made this application. The original papers in the divorce proceedings were used to show that the notice by publication of the pendency of the suit was published in a newspaper that was printed and circulated in the town of Brookville, and not in one of the Salina papers, where his wife and family resided. This is enough to show the character of the support made to aid his application to vacate, and to be let in to defend. There was nothing offered on the other side. There was a demurrer to the affidavit and other matters supporting the application, and it was sustained, and this ruling is alleged as error here, and we think it is, and the case ought to be reversed. The judgment in the divorce action comes within the operation of section 77 of the Code, as being one rendered without other service than by publication in a newspaper. The plaintiff in the action filed her affidavit, in effect, that she could not make, or cause to be made, any other service. It may be that she did not know his post-office address, or it may be that she did; but when she swears that she could not make any other service than that by publication in a newspaper, it ought to be the end of the inquiry as to whether any other service was made. It cannot be held that the act of making and filing the affidavit that no other service could be had was such an additional act, coupled with the publication in the newspaper, as to exclude the case from the operation of section 77. Crouch v. Crouch, 30 Wis. 667; Edson v. Edson, 108 Mass. 590. In the Lewis Case, 15 Kan. 181, it was held that mailing a copy of the petition, with a copy of the publication notice attached thereto, combined with the notice published in the newspaper, were the requisites of the law to make a good service in such an action; that these two things excluded the operation of section 77 to the case. This is the point decided in that case, and the only one necessary to pass upon; but the same question does not arise in this case. If it did, we should feel bound by that decision. It is also said, in that case, that section 77 does not apply to divorce cases, but since that time section 647 of the Code has been amended, (in 1881,) and its operation enlarged; and now the provisions of the Code upon the subject of the vacation of judgments are made applicable to divorce actions, if commenced within six months after the rendition of such judgments. The amended section gives the right, but does not prescribe the manner in which it shall be exercised; but that must be sought and found in the other provisions regulating such proceedings. Section 77 is one of them, and applies in all divorce cases where judgments have been rendered on no other service than by notice published in a newspaper. It is said that this section allows three years within which a judgment can be opened, and hence can have no application to a divorce case. This is a mistake; the duty of the court is to reconcile them, and give them both force. The construction we adopt does this, and there appears to be no escape from it. The amendment of 1881 expressly provides that judgments in divorce cases may be vacated within six months from the date of their rendition, but does not prescribe the manner. It must be held that the other provisions of the Code prescribing causes and providing methods of vacation are applicable, |