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securing Miner's indebtedness to the bank, averred that the sole purpose of the deed was to indemnify Shimer against liability as surety, and set up the alteration of the deed, which was alleged to have been wrongfully made without the consent of Miner or Shim
The answer contained some other de. nials and averments, which, for reasons to be given hereafter, it is not necessary to notice. The court declined to pass upon any of the questions of fact raised by the pleadings and evidence, and decided the case in favor of the defendants solely upon its construction of the trust deed. It mentioned the alteration in the instrument, and indicated its belief, from the evidence, that the position of the defendants in regard to that could not be sustained. Before passing to the question upon the disposition of which our decision must turn, it may be well to say that the alteration, whether made with the consent of parties or not, was, when we consider the time when it was made, entirely immaterial. If allowed to stand, no person could be injured, or any right affected, one way or another, by it. It purported to bind Shimer to become surety upon the note for $3,536. But he had already become such surety. He had signed the note, and it was in the plaintiff's possession, before the words were inserted. Such being the case, they were absolutely meaningless, and could have no effect upon the instrument, or upon the rights of any party connected with it. There were several other questions of fact, raised upon the pleadings and evidence, which are the subject of considerable argument, and the disposition of which upon another trial may affect the plaintiff's right to a decree; but, as the court refused to decide any of them, they are not properly before us. Ordinarily we are bound by the findings of fact of the trial court, but where there are questions in a case upon which that court makes no findings they must remain open here. The trial of causes is not within our jurisdiction.
We shall, therefore, proceed to an examination of the ground upon which the court expressly based its judgment. That ground was that the trust deed was given for the sole purpose of protecting Shimer against loss on account of his suretyship. What the purpose of the deed was must be found in itself. Extrinsic evidence of some intention different from that which it expressed cannot be received; but, although there was some proof attempted in that direction, the court, in reaching its conclusion, did not undertake to go outside of the language of the instrument itself. Therefore the only question before us is whether the court interpreted that language correctly. The expressed purpose of the deed was-First, to secure the payment of the note; and, second, to indemnify Shimer as surety, and save him harmless from personal liability upon the note. It authorized a sale of the property by the trustee in case of default in payment of the note, and pro
vided for the application of the proceeds, less expenses, upon the note. If the note_or, rather, the debt which it evidenced-was paid, no right in the trust deed would ever vest in Shimer. If the note was not paid, and the bank undertook to hold him personally liable, then he might cause the property to be sold, and the proceeds turned over to the bank; but he could not foreclose for himself, unless he had first paid the bank the amount due to it. Primarily, the trust deed was given as security for the debt to the bank. The right in it which Shimer had was secondary and contingent. The bank, as the owner of the indebtedness, was also the owner of the security. In this case there were two securities, the land and Shimer, and the bank might pursue either, resorting to the other for whatever the first failed to yield. It is immaterial how many renewals there were of the original note. A note is simply evidence of a debt. It was the debt which was secured. Giving one note in lieu of another is not a payment of the debt. The several renewal notes evidenced the same debt, and until that was paid the security remained in force for the benefit of the owner of the debt. The release executed by Morse recited that W. A. Miner had fully paid and satisfied the original note. This recital was not true. He had replaced the note by another, but had not paid it. At the time the release was written it was unpaid, and it is still unpaid. The release also recited that it was made at the request of Frank Shimer. Shimer had no authority to order a release. As he had not paid the debt, the security did not belong to him. Its release could be legally authorized only by the bank, the holder of the debt, and the paper did not purport to be executed by its authority. Without authority from the party for whose benefit the trust deed was given, the act of the trustee in releasing it was void. The mortgage to the Union Bank of Greeley was executed before this supposed release was made; but, even if it had been executed subsequently, as was the case with the mortgage to Bronk, the recital in the releasing instrument that it was executed at Shimer's instance, and the absence of any appearance of authority from the owner of the debt, would have made it its duty to inquire into the facts, if it intended its mortgage to be a prior lien. The judgment below, being based on an erroneous construction of the deed, must be reversed. Reversed.
WILSON, J., not sitting.
(7 Wyo. 1) DALEY V. ANDERSON et al. (Supreme Court of Wyoming. April 26, 1897.) WATER APPROPRIATIONS-APPEAL FROM DECISION OF STATE BOARD-PETITION-NOTICE-Com
PUTATION or TIME-JUDGMENT-ENTRY. 1. Laws 1890-91, c. 8. $ 30, provides that within six months after appeal, under sections
27-29, from the decision of the state board of the filing of such notice the appeal shall be control as to the amount and priority of water
deemed to have been taken." Section 30 appropriations, appellant shall file with the clerk of the district court a petition setting out the
provides that the appellant shall, within six cause of the complaint. An appeal was taken months after the appeal, as provided for in August 30, 1893, and the petition was filed Feb
sections 27, 28, and 29, is perfected, file in the ruary 28, 1894. Held, that the petition was in
office of the clerk of the district court a petitime, since the statute provides that a month means a calendar month, and the rule for com- tion setting out the cause of the complaint. puting a term of calendar months is that the The first question presented is whether the term expires on the day of the last month cor
filing of the petition on February 28, 1891, responding to the day of the month in which the term began, if the last month has a sutli
complies with the requirement of the statute cient number of days; otherwise, on the last day that it shall be filed within six months after of that month.
taking the appeal, August 30, 1893. It is con2. Under Laws 1890–91, c. 8, § 28, providing that within 60 days "of the determination" of
ceded, and our statute provides, that the word the state board of control as to the amount and "month," when used in the statutes of this priority of water appropriations, and the entry state, means a calendar month. The defendants thereof in the record of the board," appellant must file his notice of appeal, it will not be pre
in error contend that the period from August sumed, on a question whether the notice was
30th to February 28th includes the six calenfiled in time, that the entry was made on the dar months of September, October, November, date of the determination, where the transcript
December, January, and February, and one does not show the date of the entry. 3. Under Laws 1890-91, c. 8, § 28, providing
day, the 31st of August, in addition; and it is that, within 60 days from entry of the decision argued, there being twelve calendar months in of the state board of control fixing the amount the year, that, if six be taken away, there must and priority of water appropriations, appellant be six remaining; but that deducting the six shall file notice of appeal in the district court to which appeal is taken, a notice filed on August months from September to February, inclu30, 1893, was not in time, where the decision sive, and the last day of August, as in this was entered the previous June 30th, the stati
case, the remainder would be one day less tory rule being that the first day shall be excluded, and the last day included.
than six months, and that consequently the
period from August 30th to February 28th Error to district court, Carbon county; Jesse
must be one day more than six months, and Knight, Judge.
that, therefore, the filing was not in time, and Proceeding between William Daley and
that this fact is jurisdictional. This reasonPatrick Anderson and another, before the
ing is ingenious, to say the least, and we have state board of control, to determine priorities
found no American case where the precise in appropriations of water. From a decision
point is decided. We are referred, however, of the board, Daley appealed, and, from a
to the English case of Migotti -v. Colvill, 4 C. judgment dismissing his appeal, brings error.
P. Div. 233, where the same reasoning was Affirmed.
employed, and the court decided adversely to McMicken & Blydenburgh, for plaintiff in the position of the defendants in error. The error. Lacey & Van Devanter, for defend-real question is, what is the proper method of ants in error.
computing one or more calendar months?
The term “calendar month" is used to distinCORN, J. This case arises upon an alleged guish it from the lunar month, and means a erroneous ruling of the district court of Car- | month as designated in the calendar, without bon county in sustaining a motion of the de- regard to the number of days it may contain. fendants in error to dismiss an appeal taken In commercial transactions it means a month by plaintiff in error from an order of the state ending on the day in the succeeding month board of control, determining the priorities corresponding to the day in the preceding and amount of appropriations of water from month from which the computation began. Separation creek, in that county. The order, By our statute the first day is excluded and as appears by a certified copy of it, was made the last included, so that a month from AuJune 3, 1893. The plaintiff in error filed his gust 30th would begin at the last moment of notice and undertaking on appeal under sec- August 30th. And this is the reasonable and tion 28, c. 8, Laws 1890-91, on August 30, proper method of computation in all cases 1893, and his petition under section 30 on arising under our statute. But the confusion February 28, 1894. At the hearing, the de- occurs in this case from the fact that the comfendants in error presented their motion to putation begins near the close of the month, dismiss the appeal, for the reason “that plain- and that the months are not of uniform tiff and appellant's petition in appeal was not length. The computation beginning on Aufiled within the time by law provided”; and gust 30th, it would probably not be questionthe district court sustained the motion, and ed that two months would end with October dismissed the appeal. The statute (section 30th; and this would meet the demand of de28, C. 8, Laws 1890–91) provides that “the fendants' argument that, after taking away party or parties appealing shall, within sixty two months, there should be ten months redays of the determination of the board of con- maining of the year. But it would seem trol, which is appealed from, and the entry equally clear that, computing from the same thereof in the records of the board, file in the date, one month would end with September district court to which the appeal is taken, a 30th; but in order to have eleven calendar notice in writing, stating,” etc., "and upon months remaining, and answer the demands
of defendants' argument, the whole month of The only evidence in the case showing when August must be included, and that would re- it was entered is a recital in the undertaking quire that the 31st day of August be counted on appeal executed by the plaintiff in error, twice in the year,-first to make the one cal- which recital is: “Said determination and deendar month, and afterwards to complete the cree having been made and entered in the eleven calendar months. And so, if the com- records of the state board of control during putation begin with August 28th, it will not the month of June, A. D. 1893." Under any be questioned, I think, that six months would construction of this language, it is an admisend with February 28th, following. But, in sion of the plaintiff in error that it was enorder to have six calendar months remaining, tered not later than June 30th. Excluding the whole of the months from March to Au- the first day, and including the last, under the gust, inclusive, must be counted; and, again, rule prescribed by the statute, there elapsed three days at the end of August would need 31 days of July, and 30 days in August, makto be counted twice to make up the twelve ing 61 days from the entry to the filing of calendar months. But, if it be contended the notice of appeal, or one day more than the that, the whole of the month of February time allowed by the statute. “The time withhaving been exhausted in completing the first in which an appeal must be taken is fixed by six months, the computation of the last six law. The appeal must be taken within the months must begin with March 1st, then the time designated. The provision which limits 1st day of March, being excluded from the the time is jurisdictional in its nature. The computation by the statute, would be entirely time cannot be enlarged by the court, nor by lost, and the last six months would be short the agreement of the parties.” Elliott, App. by one day. I think these illustrations suffi- Proc. 111. It was intimated in the argument ciently show that it is impracticable to apply of the case in this court that for some reason the method of computation insisted upon by this objection to the jurisdiction was not urthe defendants in error. But if it be kept in ged, and perhaps not presented, in the court mind that it is to be a computation by months, below; that, if it had been, it would have been and not by days, the difficulty of arriving at successfully met by the plaintiff in error. We a reasonable and convenient rule in a great have no knowledge of any circumstances measure disappears. The rule approved by which would have excused the failure of the the English court in the case of Migotti v. plaintiff in error to file his notice of appeal Colvill, supra, is, in substance, that the term within the time prescribed by the statute. of months expires on the day of the last The objection is made here, and seems to be month corresponding to the day of the month
covered by the general terms of the motion in which the term began, and, if the last presented to the district court.
It appears month have not so many days, then on the to this court that the notice was not filed in last day of that month. This seems to be the time, and that the court below was entirely true and reasonable method of computation, without jurisdiction to entertain the appeal. and in cases under our statute the term does
The judgment dismissing the appeal must not expire until the last moment of the day. therefore be affirmed. Judgment affirmed. The petition filed on February 28th was therefore filed within six months from August CONAWAY, C. J., and POTTER, J., concur. 30th. But it is further objected by the defendants
(58 Kan. 263; in error that the notice of appeal was not filed
HELLER V. CITY OF GARDEN CITY. within 60 days of the determination and entry thereof in the records, as required by law.
(Supreme Court of Kansas. May 8, 1897.) There is no direct evidence showing when the
CONTRACTS OF City-SHADE TREES–LIABILITY FOR
Price. entry in the records was made. The deter
1. A city of the second class may contract for mination, as appears by the transcript of the planting, maintaining, and protecting shade trees record, was made on June 3d. The transcript on its streets, and for the purpose of paying for does not state when it was entered. Coun
the same may make assessments and collect
taxes in the same manner as provided for assel for defendants in error insist that, in the
sessing and collecting taxes for sidewalks, absence of any other showing, it must be 2. Such a contract was made by a city, and it deemed to have been entered at the date of was stipulated that assessments on the abutting the determination. I do not think so. "En
property should be made and accepted as pay
ment of the contract price of the improvement; try is not essential to the validity of the judg- but when the work was done the city repudiated ment, but it is, as a general rule, a prerequi- the contract, and refused to make assessments site to the right of appeal.” 1 Black, Judgm.
or take any of the necessary steps towards pro$ 106. The statute giving the right of appeal
viding a fund for the payment of the contractor.
Helil, that the city became liable to pay the con. in this case follows the general rule, and pro- tract price, and that the contractor might mainvides that the appeal shall be taken "within tain an action against it therefor. sixty days of the determination of the board
(Syllabus by the Court.) of control and the entry thereof in the rec- Error from district court, Edwards county; ords of the board." It clearly contemplates S. W. Vandivert, Judge. the two acts as separate, and that the time Action by S. M. Heller against the city of in which the appeal may be taken does not Garden City. From a judgment for defend. begin to run until the entry in the records. ant, plaintiff brings error, Reversed.
Action by S. M. Heller against the city of many of the trees complied with the con. Garden City to recover for trees planted in tract, and requested them to take the necespursuance of a contract made with the city. | sary steps to ascertain the amount due plainIn his petition he alleges the passage of an tiff, and to make an assessment and levy of ordinance which provided for the planting and taxes as provided in the contract; but the growing of shade trees on the streets of the officers of the city refused to comply with city, to be paid for by the owners of prop- the request or to recognize the contract, and erty abutting on the streets so improved. It have ever since repudiated it. It is further was ordained that the committee of the coun- alleged that on May 30, 1890, there were cil should enter into a contract in the name 2,017 trees which had been growing for one and on behalf of the city with parties, but year, and which were of the value of 95 cents that no liability should be incurred by the each, and that the services in planting and city to pay for the planting of trees except out maintaining them were of the actual value of a fund raised upon assessment and levy of of $1,944.65; that on May 30, 1890, there taxes against the abutting property, and that were 1,145 trees which had been planted in no liability should be incurred to pay for trees the year 1890, and that the value of the plainexcept such as had been planted for two tiff's services in planting the trees was $629.years, and were in a thrifty and prosperous 75. There is an averment that all rights uncondition in the opinion of the city council, or der the contract with the city had been transof some agent appointed by the council to ex- ferred to the plaintiff by assignment, and he amine and report upon the condition of the demanded judgment against the city for the trees. It was further provided "that, when- sum of $23,796.40. An answer was filed by ever there shall be any payment due under it, the defendant, and when the case was called the party contracting with the city shall pre- for trial the defendant objected to the intro. sent his claim to the city council, specifying duction of any evidence for the reason that the lots and pieces of ground abutting on the the petition failed to state facts sufficient to improvements, certified to as correct by the constitute a cause of action. The court susstreet commissioner of said city; and the city tained the objection, and the plaintiff except. council shall then, upon finding the claim to ed to the ruling. be correct, levy an assessment against the lots and pieces of ground abutting on such im- H. F. Mason, for plaintiff in error. G. L. provements according to the front foot there- Miller and A. J. Hoskinson, for defendant in of, and warrants shall be drawn payable only
error. from the fund raised by such special taxation to pay for such planting of trees so con- JOHNSTON, J. (after stating the facts). tracted for.” Accordingly, and on February The planting of shade trees upon the streets 18, 1888, the city entered into a contract with is an improvement of recognized public bene W. E. Dabney for the planting of trees along fit, and the power to provide for planting. a number of the streets of the city at the maintaining, and protecting them is expressprice of $1.35 for each tree found to be in
ly conferred upon the cities of the class to a thrifty and prosperous condition at the end which Garden City belongs. Gen. St. 1889. of two years, and agreeing that warrants par. 789. As an improvement they are placed should be drawn in payment for the trees in on a footing with sidewalks, and are provided accordance with the provisions of the ordi- and paid for in the same manner as side. nance. Trees were planted in compliance walks are provided and paid for. While prowith the provisions of the contract, and it is vision is made that assessments may be ler. alleged that on May 30, 1890, there were 15,- ied against abutting property to pay for such 720 trees growing in the city, planted and improvements, the city is nevertheless pri. maintained by Dabney and his assigns under marily liable to those with whom it contracts the contract, upon which there was due the to make them, Under the authority of the sum of $21,222. On that day the plaintiff statutes, the city might have made a contendered to the street commissioner of the tract for the planting and maintaining of city a record of the trees planted under the trees upon the streets and avenues of the contract, specifying the lots and pieces of city, and to pay the contractor for the same ground abutting thereon, and requested the out of the general fund, reimbursing itself street commissioner to certify the same as later by a special assessment against the correct; but the street commissioner refused abutting property. City of Leavenworth v. to receive the record, and refused to certify Mills, 6 Kan. 288; City of Wyandotte V. as requested. On May 30, 1890, the plaintiff Zertz, 21 Kan. G49; City of Atchison v. Leu, tendered the officers of the city, at a regular 48 Kan. 138, 29 Pac. 467; Garden City v meeting of the mayor and council, a record of Trigg, 57 Kan, 632, 47 Pac. 524; King v. City the trees planted under the contract, and re- of Frankfort, 2 Kan. App. 530, 43 Pac. 983. quested them to receive the same, and to in- The city and its officers alone are authorized struct the street commissioner to examine the to make and collect assessments, and, where trees, and certify to so much of said record they fail and refuse to take the necessary as was found to be correct, and requested the steps to provide a fund for the payment of council to examine the trees either in person the same, the contractor must tben look to or by agent, with a view of determining how the city for the contract price of his work or
the value of his services. When the city re- Fenlon & Fenlon, for plaintiff in error. A. pudiated the contract, and refused to take the L. W’illiams, N. H, Loomis, and R. W. Blair, necessary steps to collect the fund for the for defendant in error. payment of the contractor, he was entirely. helpless, and without any means of ever ob- ALLEN,'J. This action was brought by taining compensation for his work. It has Kelley to recover damages for injuries rebeen suggested that a proceeding might beceived by him while employed as a bridge brought against the officers to compel them carpenter constructing a bridge on the line to take the steps required 'under the contract, of the defendant's road. The court sustained the ordinance, and the statutes, but, there a demurrer to the plaintiff's evidence, and he being so many steps to be taken at different thereupon brought the case to this court to times by different officers, the remedy is obtain a review of that ruling. The defendwholly inappropriate and inadequate. If the ant in error moves to dismiss on the ground city officers had examined the trees, and is- that on October 13, 1893, after the petition in sued warrants for the amounts due the con- error was filed, the property of the defendant tractor, and levied assessments against the was placed in the hands of receivers, who improved property to meet the warrants, no have never been made parties to the proceedgeneral liability would have attached; but ings in this court. The only authority cited their failure and refusal to take these steps, in favor of the motion is the case of Scannell and their final repudiation of the contract, v. Felton, 46 Pac. 948, in which this court held under the authorities, subject the city to a that "a receiver of an insolvent bank, duly general liability, and the plaintiff was there- appointed to take charge of the assets under fore entitled to maintain the action which he the banking laws, is a necessary party to a brought. In addition to the authorities al- proceeding in error in this court to reverse a ready cited, see City of Leavenworth v. Stille, judgment rendered in favor of the bank prior 13 Kan. 539; City of Atchison v. Byrnes, 22 to his appointment.” In that case it appearKan. 65; Fisher v. City of St. Louis, 44 Mo. ed that the bank was insolvent, and that the 482; City of Louisville v. Leatherman (Ky.) only persons interested in enforcing the judg35 S. W. 625; Barber Asphalt Pav. Co. v. ment were its creditors. It was held that the City of Harrisburg, 12 C. C. A. 100, 64 Fed. receiver, as their representative, was a nec283; Northern Pac. L. & M. Co. v. City of East essary party to a proceeding to reverse the Portland, 14 Or. 3, 12 Pac. 4; District of judgment. This is an essentially different Columbia v. Lyon, 161 U. S. 200, 16 Sup. Ct.
The receivers are not interested in es4.30; Barber Asphalt Pav. Co. v. City of Den- tablishing the demand. It is not of the asver, 19 C. C. A. 139,- 72 Fed. 336.
sets in their hands. Nor is there any attempt tent of the liability of the city cannot now be as yet to charge the assets in their hands with determined, but, as plaintiff alleged a com- the payment of the claim. The injury for pliance with the provisions of the contract, which the plaintiff seeks compensation was we think enough was alleged to show that received while he was employed by the railthe city was liable for some amount, and way company, and his cause of action is therefore the judgment of the district court against it. The fact that the assets of the will be reversed, and the cause remanded for company have been placed in the hands of another trial. All the justices concurring. the receivers does not change or affect the
liability of the railway company to the plaintiff, and the receivers are not necessary par
ties to a determination of the controversy. (58 Kan. 161)
Railway Co. v. Beggs, 85 Ill. 80; Mercantile KELLEY V. UNION PAC. RY. CO.
Trust Co. v. Pittsburg & W. R. Co., 29 Fed. (Supreme Court of Kansas. May 8, 1897.) 732; High, Rec. & 2.38; Patrick V. Eells, 30
APPEAL-PARTIES-INJURYOTO EMPLOYE. Kan, 680, 2 Pac. 116. 1. Where a proceeding in error is instituted in It appears from the testimony given on bethis court to reverse a judgment in favor of the half of the plaintiff that he was one of a gang defendant, rendered in an action brought against
of eight men working under the direction of a railway company to recover damages for personal injuries sustained by the plaintiff, re
George Sherwood, constructing a pile bridge ceivers appointed to take charge of the property across Stranger creek, to take the place of a of the defendant company after the filing of the Howe truss bridge. The piles had been drivpetition in error in this court are not necessary parties to the case. Scannell v. Felton (Kan.
en before this gang commenced work. The Sup.) 46 Pac. 948, distinguished.
plaintiff was first engaged in bringing the 2. The evidence consiuered, and held sufficient piles into line, by digging and forcing them to require its submission to the jury, and that
with a jackscrew. While he was so employthe ruling of the court sustaining a demurrer thereto was erroneous.
ed, other members of the gang constructed a (Syllabus by the Court.)
scaffold, attached to the piles, on which the
plaintiff afterwards stood while sawing off Error from district court, Leavenworth the tops of the piles and preparing them for county; Robert Crozier, Judge.
the superstructure. In order to proceed, it Action by John W. Kelley against the Union became necessary to move one of the beams Pacific Railway Company. Judgment for de- in the old bridge to make room to do the fendant, and plaintiff brings error. Reversed. work. While the plaintiff was holding a jack