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dwelt upon, but both such matters are easily disposed of by the simple observation that the plaintiff in error admitted that Mr. North's occupancy was the possession of Mr. Bowman when he executed an instrument admitting Mr. Bowman's title to the land, and when his assumed grantor, Mr. Steele, made the same admission in the same instrument. The instruction of the court to find for the defendant in error (plaintiff below) was correct, and its judgment is affirmed. All the justices concurring.

(5 Kán. App. 763)

HESS et al. v. GRIMES, Sheriff. (Court of Appeals of Kansas, Southern Depart

ment, W. D. April 13, 1897.) EXTRADITIOX-FUGITIVE FROM JUSTICE-BRINGING

STOLEN PROPERTY INTO STATE. 1. Where a person is charged with the commission of an offense against two separate states or territories, and is apprehended in one of them, and the laws of such state or territory have been put in force against him, it has exclusive jurisdiction of the prisoner until the demands of its laws are satisfied. If, however, the governor of such state honors a requisition for the prisoner made upon him by the governor of the other state, and surrenders him to the demanding state, it will operate as a waiver of the jurisdiction of the asylum state.

2. The term "flee from justice," in article 4, § 2, of the constitution, includes cases where a citizen of one state commits a crime in another state, and then returns home.

3. Paragraphs 2559 and 2560 of the General Statutes of Kansas, construed together, provide that a person may be convicted and punished for the larceny of property if he brings stolen property within the borders of the state, although the theft may have occurred outside of the state; but, if the person has been either convicted or acquitted of the larceny of the same property elsewhere, such conviction or acquittal is a bar to any other or further proceedings against him for the larceny of such property.

4. In the absence of evidence to the contrary, we must presume that the laws of Oklahoma Territory are the same as the laws of our own state upon the same subject.

(Syllabus by the Court.)

Application of Charles Hess and Reuben Orr against George M. Grimes, sheriff of Clark county, for a writ of habeas corpus. Denied.

M. W. Sutton and H. J. Bone, for petitioners. Temple Houston, for respondent.

all courts to which this case may be taken or appealed: First. That Chas. Hess and Reub. Orr are now, and have been for more than one year prior to the institution of the proceedings hereinafter mentioned, residents of the county of Woodward, territory of Oklahoma. That on the 24th day of October, 1896, a complaint duly sworn to was made before a justice of the peace of said county, charging said petitioners with the crime of grand larceny, a copy of which complaint is referred to and made a part hereof, the same being set out in full in petitioners' application. That on the 26th day of October, 1896, said justice of the peace issued a warrant upon said complaint, by virtue of which the petitioners were arrested by the sheriff of Woodward county, Oklahoma, and taken before said justice of the peace. That a hearing or preliminary examination was had, and the petitioners were held and bound to await the action of the district court of Woodward county and the grand jury thereof. That on the 18th day of December, 1896, they were by the grand jury of said Woodward county indicted, and charged with the crime of grand larceny, and that the offense laid in the indictment was and is the same for which they were arrested and charged before the justice of the peace aforesaid.

That they were arrested upon a warrant issued by the clerk of the court of Woodward county, by virtue of said indictment, on said 18th day of December, 1896, and were taken before the court on said day, and there pleaded not guilty to said indictment, and bail was by the court fixed at the sum of seven hundred dollars each for their appearance at the June term of said court for the year 1897, which bail was then and there given, and the petitioners were discharged, and thereupon said cause was by said court continued until the June term for the year 1897 of said court, and that said proceedings are still pending and undetermined in said Woodward county district court. That afterwards, and on the 11th day of November, 1896, the county attorney of Clark county, Kansas, filed an information in the district court of Clark county, Kansas, charging these petitioners with the crime of grand larceny; and afterwards an application was made to the governor of the state of Kansas for a requisition upon the governor of the territory of Oklahoma, based upon a certified copy of said information, which is fully set out in the petitioners' application for a writ of habeas corpus in this case, and an affidavit stating the facts constituting the crime sworn to by Temple Houston, Esq., attorney at law, who had appeared and prosecuted as an attorney for the territory, and appeared for the territory in the district court of Woodward county, as private counsel for complainant representing the territory in the proceedings therein had, and herein set out. That, upon application so made to the governor of Kansas, a

DENNISON, P. J. The petitioners, Charles Hess and Reuben Orr, made an application in due form to Hon. B. F. Milton, one of the judges of the Kansas court of appeals of the Southern department, for a writ of habeas corpus.

The cause was submitted to the judges upon the following agreed statement of facts: “It is agreed by and between the petitioners, by H. J. Bone and M. W. Sutton, their attorneys, and George M. Grimes, respondent, by Temple Houston, his attorney, that the above-entitled cause may be heard upon the following agreed statement of facts, not only in this court, but in

jequisition was issued upon the governor and on which the warrant by virtue of which of Oklahoma Territory; and, upon the requi- | petitioners are held was based, and that pesition so made, the governor of Oklahoma titioners were in Woodward county, OklahoTerritory issued his warrant for the arrest ma Territory, at the time of their arrest. It and return to Kansas of the petitioners, is expressly stipulated by and between counwhich warrant of the governor of Oklahoma sel for petitioners and respondent that the Territory was signed and issued prior to the stipulations herein contained shall not be discharge of petitioners herein, upon their used in the case of Eddleman Brothers V. giving bail as aforesaid in the district court Charles Hess et al., pending in the justice of Woodward county, Oklahoma. That the court of Center township, Clark county, Kanwarrant so issued by the governor of Okla- sas, nor in a certain criminal cause pending homa Territory was executed on the 18th day in the district court of said county, entitled of December, 1896, and these petitioners 'The State of Kansas v. Charles Hess et al.'; were arrested and brought to the state of and that no recital in this record shall be Kansas, and incarcerated in the jail of Clark construed as applying to said causes, but county, Kansas, and were and are confined limited in its operation to the application of in said jail. That the claim of the state in petitioners for release under the writ of hathe case of the state of Kansas versus these beas corpus. M. W. Sutton, H. J. Bone, for petitioners, pending in Clark county district Petitioners. Temple Houston, for Respondcourt, is that these petitioners stole the prop

ent." erty described in the information filed in the It is contended on behalf of the petitioners district court of Clark county, Kansas, in that the district court of Woodward county, Woodward county, Oklahoma Territory, and Okl., had jurisdiction of the petitioners; drove the same into the state of Kansas and and the case of Taylor y. Taintor, 16 Wall. Clark county. That the property for which 366, and other cases, are cited in support of the petitioners were arrested and indicted is the contention. There is no question that the same identical property described in the on December 18, 1896, the Woodward county information upon which petitioners are be- district court had jurisdiction of the petiing prosecuted in Clark county, Kansas, and,

tioners. Neither is there any question that if taken at all, taken in the same transaction on said day the territory of Oklahoma waivand at the same time; and that the action ed its jurisdiction by the act of its governor for which these petitioners are being prose- in delivering up the petitioners to the agent cuted is brought under paragraph 2559, Gen. of the state of Kansas upon the requisition St. 1889, being section 419 of the crimes and of the governor thereof. By such delivery punishments act of the state of Kansas. It and surrender the territory of Oklahoma is further agreed: That all of the proceed- can no longer require their appearance beings of the court that are of record in Wood- fore her tribunals; and all obligations which ward county, Oklahoma Territory, are em

she has taken to secure that result therebraced and embodied in the application of upon, at once, ipso facto, lose their binding your petitioners herein, together with the effect, and no action can be maintained upfurther statement herein made concerning on the bonds given to secure their appearhabeas corpus, Woodward county, 0. T. ance before the Woodward county, Okl., disThat after the governor of Oklahoma had trict court. See Taylor V. Taintor, supra, honored the requisition aforesaid of the gov- and 7 Am. & Eng. Enc. Law, p. 643, $ 19, and ernor of Kansas, and issued his warrant notes 2 and 3, and authorities there cited. thereon for the arrest of petitioners, and It is also contended that the petitioners while they were in custody by virtue of such were not fugitives from justice, within the warrant, petitioners, on the day of meaning of the law. They were charged December, 1896, applied to the Hon. Frank with the larceny of a calf in Woodward Dale, judge of the First judicial district, ter-county, Okl., and with driving the same calf ritory of Oklahoma, for a writ of habeas into Clark county, Kan., after having stolen corpus, in order that petitioners might be it in Woodward county. The petitioners released and discharged from such arrest; were in Clark county, Kan., at the time the and upon a hearing of such application dur- calf was alleged to have been brought into ing a term of the district court of Woodward said county, and went from there to Wood(ounty, said territory, on the day of ward county, Okl., where the calf is alleged December, 1896, the said Judge Frank Dale to have been stolen. It is contended that, ordered that petitioners be remanded and instead of fleeing from justice, they returned surrendered to the custody of Geo. M. to the place where the crime is alleged to Grimes, agent of the state of Kansas for the have been committed. The petitioners are apprehension and arrest of petitioners, in being prosecuted in Kansas for an alleged order that said petitioners might answer violation of paragraph 2559 of the General Whatever charges pended against them in Statutes of 1889, which reads as follows: said state of Kansas. It is further agreed “Every person who shall steal or obtain by that the petitioners were in Clark county, robbery the property of another, in any othKansas, at the time at which the commis- er state, territory or country, and shall bring sion of the offense charged in the informa- the same into this state, may be convicted tion filed against them in said county is laid, and punished for larceny in the same manner (as) if such property had been felonious- the alleged fugitive to a foreign jurisdiction, ly stolen or taken within this state; and in with a view there to serve him with civil any such cases, the larceny may be charged process," etc. If the proper affidavit was to have been committed, and may be indict- not presented to the governor of Kansas, ed and punished, in any county into or we are not advised of it. It does not apthrough which such stolen property shall pear whether or not the county attorney of have been brought." The petitioners are Clark county or the governor of Kansas charged with an offense against the state of knew that the petitioners were arrested in Kansas by bringing stolen property into it. Woodward county, Okl. We would suppose The Kansas authorities do not charge them they did not know that such was the case, with an offense against the territory of Ok- for the reason that if they had known that lahoma, but against the state of Kansas. the original theft had occurred in WoodWhen a complaint was made and a war- ward county, Okl., and that the guilty parties rant issued for their arrest to answer for had been apprehended and were under bonds their infraction of Kansas laws, they were to appear before the district court of that not in Kansas. They were in Oklahoma, county to answer for the offense, they would having gone from Kansas after the alleged have permitted Woodward county, Okl., to commission of crime in Kansas. "The term be to the expense of prosecuting, convicting, 'flee from justice,' in article 4, section 2, of and caring for her own criminals, instead of the constitution of the United States, in- burdening Clark county, Kan., with the ex. cludes cases where a citizen of one state pense thereof. However, if they had known commits a crime in another state, and then these things, they could, if they had so de returns home.” Ex parte Swearingen, 13 sired, have proceeded in the same manner in S. C. 74. See, also, 7 Am. & Eng. Enc. Law, which they did proceed. p. 616, $ 23, and notes.

It is claimed by the respondent that the The counsel for the petitioners also contend action of Judge Dale, of the district court of that, because of the peculiar nature of the Woodward county, Okl., in refusing to re crime alleged to have been committed, the or- | lease the petitioners upon the babeas corpus dinary interpretation of the term "fugitive from proceedings prosecuted before him, is a justice” does not apply; that the qualifications waiver of the jurisdiction of the territory of contained in paragraph 2560 of the General | Oklahoma over the persons of the petition. Statutes of 1889 provide that a former convic- ers. We cannot assent to this claim. Howtion or acquittal for the same offense in an- ever, the action of the governor of Oklahoma other state, territory, or country shall be a in honoring the requisition of the governor bar to other or further proceedings against of Kansas is such a waiver. the accused. These two paragraphs, con- It follows from what has already been strued together, provide that a person may said in this opinion that the petitioners, be convicted and punished for the larceny Charles Hess and Reuben Orr, were charged of property if he brings stolen property with having committed an offense against within the borders of the state, although the both Oklahoma Territory and the state of theft may have occurred outside of the state; Kansas, and that Oklahoma Territory first but, if the person has been either convicted obtained jurisdiction of the persons of the or acquitted of the larceny of the same prop- petitioners; that the executive of Oklahoma erty elsewhere, such conviction or acquittal Territory waived such jurisdiction, and turnis a bar to any other or further proceedings ed them over to the authorities of Kansas; against him for the larceny of such property. and that they are now legally in the custody

It is argued that a conviction or acquittal of George M. Grimes, respondent, as sherity, in Kansas is not, under the statutes of Ok- to answer the charge made against them in lahoma, a bar to another trial for the lar- Clark county, Kan. During the hearing of ceny of the same property in Oklahoma. this application, the attorneys for the petiThe statutes of Oklahoma were not intro- tioners and the respondent agreed that $700 duced in evidence, and are not stated in the was an adequate amount of bail for each of agreed statement of facts. We must there- the petitioners, and an order has already fore presume that they are the same as our been made, pending this hearing, fixing the own statutes upon the same subject. See amount of bail to be required of each petiScott v. Beard (Kan. App.) 47 Pac. 9S6, and tioner at said sum of $700. It is therefore cases there cited.

ordered that the petitioners, Charles Hess The counsel for the petitioners also con- and Reuben Orr, be, and they each are here. tend that the application to the governor of by, remanded to the custody of the respondOklahoma was not made in good f:ith. ent, George M. Grimes, sheriff of Clark coun. Paragraph 3175 provides that the applica- ty, Kan., to be held by him under the terms tion must be "accompanied by sworn evi- of the commitment now in his hands. It is dence that the party charged is a fugitive further ordered that the said Charles Hess from justice, and that the application is and Reuben Orr, or either of them, may be made in good faith, for the punishment of released from the custody of said sheriff crime, and not for the purpose of collecting upon executing and delivering to said shera debt or pecuniary mulct, or of recovering iff a good and sufficient bond in the sum uf $700 for each petitioner, conditioned that, Vetzger, in the district court of Ottawa counthey will appear on the first day of the next ty, Kan., on the 3ů day of March, 1894, for term of the district court of Clark county, $260.32 and costs; that execution was isKan., to answer the charges alleged against sued out of said court on said judgment, and them, and not depart the same without leave returned by the sheriff wholly unsatisfied, of the court first obtained. All the judges for the want of goods or property of any concurring.

kind; that on the 6th of March, 1894, the plaintiff caused a certified transcript of said

judgment to be filed in the office of the clerk (5 Kan. App. 374)

of the district court of Saline county, Kan., METZGER et al. v. BURNETT. (No. 199.) and that the same was duly recorded there. (Court of Appeals of Kansas, Northern Depart- in; that the plaintiff was a creditor of the ment, C. D. March 22, 1897.)

defendant John S. Metzger on the 16th of CREDITORS' Suits - JUDGMENT-EXECUTION-Evi- November, 1893, on the claim on which said DENCE-WITNESSES-COMPETENCY

judgment was afterwards rendered, said APPEAL-REVIEW.

suit then being pending in the district court 1. In an action in the nature of a creditors' bill to set aside a fraudulent conveyance of real

of Ottawa county, Kan.; that on said date estate, and subject the land to the payment of said John S. Metzger was the owner of the the plaintiffs' judgment, it is not necessary that real estate described; that the defendant an execution upon the judgment be taken out

John S. Metzger, on the 16th day of Novemprior to the commencement of said action. 2. A duly-attested copy of a journal entry of

ber, 1893, made and executed and caused to a judgment rendered in another county may be be recorded a mortgage to the defendant read in evidence without proof that the orig- Walter A. Metzger on the real estate therein inal cannot be produced. 3. Where an execution was admitted in evi

described; that the mortgage was without dence by the trial court, over objection, and no consideration, and made solely for the pursuggestion was made or attention called to the pose of defrauding creditors, particularly fact, if such fact existed, that the seal of the

said plaintiff, and to hinder and delay them court did not appear thereon, this court will not consider the question, when raised here for the

in the collection of their debts; that afterfirst time, by reference to the fact that no note wards, on the 1st day of December, 1893, the is made of a seal in the record brought here.

defendant John S. Jetzger executed and de4. A book offered in evidence, which contains

livered to the defendant Walter A. Metzger but one entry made by the party producing the same, and that being simply and solely a memo

a warranty deed for said real estate, and randum of the transaction testified to by said caused the same to be recorded; there was witness, was properly refused to be admitted as

no actual consideration for said deed, and it evidence. 5. In an action to set aside a fraudulent con

was given solely for the purpose of deveyance, the wife of the party to whom the frauding creditors, and to hinder and delay fraudulent conveyance was given is not a com- them in the collection of their debts; that petent person to testify in relation to said transaction, although the grantor of said convey

the defendant John S. Metzger had no other ance appears as a nominal party in the case. property from which the judgment could be (Syllabus by the Court.)

collected, and, with the exception of the Error from district court, Saline county; R.

property so conveyed, he is insolvent, and

unable to pay his debts. F. Thompson, Judge. Action by E. C. Burnett against John S.

The plaintiffs in error contend that, before

an action to set aside a fraudulent conveyMetzger and another. From a judgment for

ance can be instituted, an execution must plaintiff, defendants bring error. Affirmed.

issue, and be levied upon the property sought Z. C. Millikin, for plaintiffs in error. T.

to be reached. This is not the law. We W. Bartley, for defendant in error.

think the correct rule is laid down in 4 Am.

& Eng. Enc. Law, p. 575: “That where WELLS, J. This was an action brought lands, the legal title to which was in the by the defendant in error (plaintiff below) debtor, have been fraudulently conveyed, it to set aside and annul a certain mortgage is enough to have a judgment, because the and deed on real estate in the city of Salina, application to chancery is to remove obKan., alleged to have been made with fraud- structions which prevent a legal lien from uent intent, to hinder and delay the plain- operating upon the property.” The same tiff below in the collection of a certain judg- principle is laid down in Dunham v. Cox, 10 ment which he had obtained against John N. J. Eq. 137, found in 04 Am. Dec., on page S. Metzger, and praying that such real es- 460, where the court, by Williamson, Ch., tate be subjected to the payment of said

says: "When a creditor has by a judgment judgment. The court below found the issues established his debt by the statute he acfor the plaintiff, and the defendants below quires a lien upon all the real estate of his bring the case here for review. We will debtor to satisfy his debt. If the debtor consider the errors alleged in the order pre- has fraudulently conveyed away or incumsented by the brief of the plaintiffs in error. bered his real estate, so as to interpose an

Did the petition filed by the plaintiff in the obstacle which embarrasses the debtor in court below state a cause of action? The pe- appropriating it by legal process in satistition recited a recovery of the judgment hy faction of his debt, then the creditor may file the plaintiff against the defendant John S. his bill to remove out of the way such fraud

behalf of the defendant, not her husband. In 4 Am. & Eng. Enc. Law, 578, it is said: "It seems that, in suits brought against fraudulent alienees to avoid specific convey. ances, the action is a proceeding in rem, and, as the debtor cannot be prejudiced by a decree, he need not be a party defendant.” If this is true, then no evidence on his part was necessary or admissible. We think the evidence in the case was sufficient to warrant the judgment rendered, and that no reversible error appears upon the record. The judgment of the court will be affirmed. All the judges concurring.

nlent cop veyance or incumbrance. It is not necessary for him to take out execution upon his judgment. The judgment constitutes a lien upon the land, and there is no necessity of compelling him, as a mere matter of form, to incur the further expense at law of issuing an execution."

The plaintiffs in error complain that the court erred in admitting an attested copy of the journal entry of a judgment rendered in another county to be read in evidence, without proof that the original could not be produced. We see no error in this. Greenl. Ev. $ 91, reads: "The rule rejecting secondary evidence is subject to some exceptions, grounded either on public convenience or on the nature of the facts to be proved. Thus, the contents of any record of a judicial court, and of entries in any other public books or registers, may be proved by an examined copy This exception extends to all records and entries of a public nature, in books required by law to be kept, and is admitted because of the inconvenience to the public which the removal of such documents might occasion, especially if they were wanted in two places at the same time, and also because of the public char. acter of the facts they contain, and the consequent facility of the detection of any fraud or error in the copy."

Complaint is also made that the trial court, over the objection of defendants, permitted plaintiff to introduce in evidence a pretended execution which he had caused to issue to the sheriff of Ottawa county, Kan., the contention being raised in this court for the first time that no seal appears upon the copy contained in the record brought here for review. Under the authority of Dexter v. Cochran, 17 Kan. 447, we do not think this claim could be sustained, even if the issuance of an execution was necessary, as it was not. We do not think this was error.

Complaint is also made of the refusal of the court to admit in evidence a book containing an entry in relation to the debt in controversy between the brothers, the only evidence in relation to which was the testimony of the party who produced it, substantially as follows: "This memoranda was made at or about the time it bears date. That is the book that I had. My father gave me that book many years ago. I always kept it. I made that entry into the book. I made those entries after I lent my brother the money

I have no other accounts that I remember of. That is the only thing that I remember putting in it. The other entries are not mine. I am positive I made those entries at the time I made the loan."

Finally, the plaintiffs in error claim the court below committed reversible error in excluding the deposition of Mrs. L. D. Metzger. This witness was the wife of the party to whom the deed claimed as fraudulent was given, and it is contended by the plaintiffs in error that she was competent to testify on

(5 Kan. App. 346) JOHNSON et al. v. ATWOOD. (Court of Appeals of Kansas, Northern Depart.

ment, C. D. March 22, 1897.) APPEAL — REVIEW-RECORD - EXECUTION SALE

APPRAISEMENT OF REALTY. 1. The judgment rendered by the trial court is authorized by the findings. This court cannot inquire into the findings of fact, where the evidence is not contained in the record; the presumption is that the findings are in accordance with the evidence.

2. Section 28, c. 109, Laws 1893, repeals paragraphs 4550, 4551, Gen. St. 1889, and since that time no appraisement of real estate offered for sale under execution or order of sale is necessary.

(Syllabus by the Court.)

Error from district court, Cloud county; F. W. Sturges, Judge.

Motion to confirm sale of real estate. From the decision John Johnson and Mary Johnson bring error. Atfirmed.

L. J. Craus, for plaintiff in error. Theo. Laing, for defendant in error.

McELROY, J. This proceeding was brought to review the rulings and judgment of the district court of Cloud county upon a motion to confirm the sale of real estate. The petition in error is based upon a transcript instead of a case-made. The record does not contain the evidence. The execution was issued on the 5th Jay of August, 1893, and the property was sold thereunder on September 11th. By section 28, c. 109, Laws 1893, paragraphs 4550 and 4551, Gen. St., are expressly repealed. The se are the only sections of our statutes that required or authorized the appraisement of

ands of fered for sale under execution, and

these sections being repealed, no appraiseme

nt was authorized at the time the execution in ques. tion was issued. The trial court made special findings of fact. The judgment The dered by the trial court is authorized by ti. findings. We cannot inquire into the fins ings of fact, for the reason the evidence not before us. The presumption is that th findings are in accordance with the evidence The judgment is affirmed. All the judge

en

concur.

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