(37 Kan. 40) STATE v. MCCLINTOCK. (Supreme Court of Kansas. July 9, 1887.) 1. CRIMINAL PRACTICE-APPEAL-RECORD-EXAMINATION ON VOIR Dire. In a criminal prosecution the only way to make the testimony or statements of jurors on their voir dire, or the testiniony of witnesses introduced on the trial, a part of the record, whether the testimony and statements are taken by a stenographic reporter or not, is to embody such testimony or statements in a bill of exceptions allowed and signed by the judge of the trial court. 2. SAME-APPEAL-RECORD-INSTRUCTIONS. And in such prosecution, instructions asked for by the defendant, and refused by the trial court, cannot become a part of the record unless they are embodied in a bill of exceptions. (Syllabus by the Court.) Appeal from district court, Sedgwick county. S. B. Bradford, Atty. Gen., and J. M. Balderston, for the State. Sankey & Campbell, for appellant. VALENTINE, J. This was a criminal prosecution upon information for murder in the first degree. The defendant, Carl McClintock, was charged with the murder of his wife, Julia A. McClintock. The only defense interposed by him was that he was insane. He was found guilty of murder in the second degree, and was sentenced to imprisonment in the penitentiary for the term of 15 years. He now appeals to this court. Many errors are assigned, but the prosecution urges as a preliminary question that none of the supposed errors are presented by the record brought to this court. The real question is whether the proceedings had in the court below concerning the examination of jurors upon their voir dire, the evidence introduced on the trial, the rulings of the court below admitting and excluding evidence, the instructions of the court given to the jury, and the instructions asked for by the defendant and refused by the court, are legally embodied in the record as brought to this court. The prosecution claims that they are not, while the defendant claims that they are. The only bill of exceptions found in the record as brought to this court reads as follows: "Be it remembered that on the trial of this cause a verdict was rendered November 25, 1886, finding the defendant guilty of murder in the second degree, and that on the twenty-seventh day of November, A. D. 1886, the defendant filed a motion for a new trial, in words and figures as follows: Said motion being hereto attached, marked ‘Exhibit A,' and made a part of this bill of exceptions. And on the twenty-ninth day of November, A. D. 1886, certain affidavits were filed in support of said motion for a new trial, which said affidavits are hereto attached, marked Exhibit B,' and made a part hereof. And on the first day of December, A. D. 1886, said motion for a new trial came on for hearing, and on the second day of December, A. D. 1886, after hearing argument on said motion, and being fully advised in the premises, the court overruled said motion for a new trial, to which ruling of the court the defendant at the time duly excepted. And thereupon the court sentenced said defendant to hard labor in the penitentiary for a term of 15 years, to which sentence the defendant at the time duly excepted." The exhibits above referred to are as stated, except that Exhibit A contains only an amendment to the motion for a new trial. Attached to the record brought to this court is what purports to be the testimony of jurors on their voir dire, and the testimony of witnesses introduced on the trial; but there is nothing in the record or elsewhere making this testimony a part of the record, or authenticating it in any manner, except a certain certificate which reads as follows: "State of Kansas, Sedgwick County-ss. "IN THE DISTRICT COURT IN AND FOR THE COUNTY AND STATE AFORESAID. "The State of Kansas v. Carl McClintock. “I, Florence Hartley, do hereby certify that I am the legally appointed and authorized official stenographer and reporter of the district court of Sedgwick county, Kansas, and that the hereto attached testimony is a true and correct transcript of all the testimony of all the witnesses who testified on the trial of the above-entitled cause, and also of all the testimony of the jurors Scott, Frank Blackburn, and M. D. Wemple, given on their voir dire. "January 28, 1887. FLORENCE HARTLEY, Official Stenographer. The paper to which this certificate is attached, was filed in the office of the clerk of the district court on February 3, 1887. Assuming that Florence Hartley, at the time of the trial of this case, and also on January 28, 1887, when she certified to the foregoing testimony, was the official stenographer of the district court of Sedgwick county,-but there is nothing in the record tending to show that she was,-then is the aforesaid testimony a part of the record of this case? We think not. There is nothing in the statutes making the stenographic notes of the official stenographer in any case, or any copy thereof, whether written out in full or not, a part of the record of such case; and the only way to make the testimony or statements of jurors on their voir dire, or the testimony of witnesses introduced on the trial, a part of the record, whether the testimony and statements are taken by a stenographic reporter or not, is to embody such testimony or statements in a bill of exceptions allowed and signed by the judge of the trial court. The acts relating to official stenographers will be found in Comp. Laws 1879, c. 28, art. 2, and Comp. Laws 1885, c. 28, art. 2. As to how exceptions may be taken and bills of exceptions made, see section 219, Crim. Code, and sections 299-305, Civil Code. See, also, State v. Wilgus, 32 Kan. 128, 129, 4 Pac. Rep. 218. At the time the aforesaid stenographer's certificate was made, her notes of evidence had never been filed in the district court; but, if they had, it would make no difference; for they could become a part of the record only by being embodied in a bill of exceptions allowed and signed by the judge of the trial court in accordance with the statutes. Section 236 of the Criminal Code reads as follows: "Sec. 236. The judge must charge the jury in writing, and the charge shall be filed among the papers of the cause. In charging the jury, he must state to them all matters of law which are necessary for their information in giving their verdict. If he presents the facts of the case, he must inform the jury that they are exclusive judges of all questions of fact." Whether the charge under this statute becomes a part of the record without being embodied in a bill of exceptions has been questioned, but not decided, (State v. Lewis, 10 Kan. 157, 160;) and it is not necessary to decide the question now. But it is clear that instructions asked for by the defendant, and refused by the trial court, cannot become a part of the record, unless they are embodied in a bill of exceptions. Taking the record as it has been brought to this court, and neither the testimony nor statements of the jurors on their voir dire, nor the testimony of witness on the trial, nor the instructions asked for by the defendant and refused by the trial court, can be considered as any part of the record; and therefore it would be useless to discuss any of the questions that might be supposed to arise upon such testimony or refusal; and, taking the record as it is, we do not think that it can be said that the trial court committed any material error. The judgment of the court below will therefore be affirmed. (All the justices concurring.) (72 Cal. 549) Estate of SULLENBERGER. (No. 11,670.) (Supreme Court of California. June 17, 1887.) 1. LIMITATION OF ACTIONS-ACKNOWLEDGMENT-EXECUTOR. Transactions between the maker of a promissory note and the executor of the payee, showing that the dealings were not carried on by the executor as such, but in his personal character, and a simple permission given by the maker to the executor that he might apply any balance of accounts there might be in his favor to the payment of the note belonging to the estate, will not take such a note out of the statute of limitations. 2. SAME-NOVATION. A loose statement by the maker of a note, after the running of the statute of limitations, to the effect that he would settle the whole indebtedness on his return, and pay the balance, if any was found due, does not amount to such "a substitution of a new obligation between the same parties, with intent to extinguish the old obligation," as is required to constitute a novation. 3. PROBATE PRACTICE-ALTERATION OF CLAIM. No substantial change in a claim on file in probate court can be made, either by amendment or otherwise, after the expiration of the time for the presentation of claims. 4. SAME SETTING ASIDE JUDGMENT. A probate court has power to set aside its own judgments obtained ex parte. 5. SAME-NOTICE OF MOTION. If an order is made out of court, and without notice, allowing a claim against an estate, no notice of motion to set it aside is necessary. Commissioners' decision. Department 1. Appeal from superior court, Yolo county. Benj. Bullard, Add. C. Hinkson, and Armstrong & Hinkson, for appellant. Reese Clark, for respondent. HAYNE, C. This is an appeal from an order setting aside the allowance by the judge of a claim against the estate. The ground of the order was that the claim was barred by the statute of limitations. We think the claim was barred. It was upon a promissory note dated December 2, 1878, and payable eight months after date. Sullenberger died December 5, 1883, at which time the statute had run against the note, unless the case is taken out of its operation by the following circumstances: After the death of L. C. Drummond, (the payee,) Sullenberger (the maker) sold some wheat to M. Drummond, who was the son of the payee and the executor of his will, and delivered some hogs to him to be sold; and M. Drummond advanced some money to Sullenberger, and paid some of his debts, and testifies that on one occasion, when about to go on a short journey, "he said that when he should return, which would be in a short time, he would settle the whole indebtedness; and, if the proceeds of the wheat and hogs were not sufficient to settle the note and money advanced and paid to his creditors, he would pay the balance." M. Drummond sold the hogs, and after applying the proceeds of the hogs and wheat to the various demands against Sullenberger there remained due on the note a balance of $828, for which sum the claim was presented. Two grounds are urged to show that the foregoing circumstances take the case out of the statute. 1. It is said that the transactions mentioned constitute a mutual open and current account. But if we assume that this is so, the account was not between the parties to the note. There is no evidence that M. Drummond had any authority from the probate court that the estate of which he was executor should advance money to Sullenberger, or pay his debts, or buy his wheat, or act as his broker in selling hogs. And it does not appear that the estate did so. So far as the evidence showed, M. Drummond advanced his own money for the purposes mentioned, and acted individually in his purchase of the wheat and sale of the hogs. His testimony is as follows: "He v.14p.no.8-33 was going away from Davisville temporarily, and was owing some to me and Liggett and to other persons. He delivered to me some hogs to sell for him and Liggett, and I had bought from him his wheat. I was to let him have some money then, which I did, and paid some debts for him." There is not a word to show any dealing between Sullenberger and the estate of Drummond. The passage first above quoted amounts to nothing more than a permission from Sullenberger to M. Drummond to apply whatever balance should remain in his hands to the payment of the note due to the estate. We attach no importance to the statement of M. Drummond that the note was "considered a part” of the business transactions which he had with Sullenberger, or that it "was understood to form a part of the indebtedness." 2. It is argued that there was a novation, and that the provision requiring a writing to take a case out of the statute does not apply, because there was a new consideration. Without considering the latter branch of this argument, it is sufficient to say that the loose statements of Sullenberger to the effect that "he would settle the whole indebtedness" on his return, and would "pay the balance" if a balance should remain after application of proceeds of sales, do not amount to "the substitution of a new obligation between the same parties with intent to extinguish the old obligation," and hence there was no novation. Civil Code, § 1531. If, however, we overlook this, and disregard the fact that the new consideration did not move from the estate, then it would follow that the claim should not have been on the note, but upon the "new obligation," which must have existed if there was any novation. The claim, however, which was allowed, and the allowance of which was set aside, was a simple claim upon the note. The "amended claim," which was allowed to be filed "in opposition to the motion" to vacate the allowance of the first claim, is not an element of the question. No substantial change can be made in a claim on file, either by way of amendment or otherwise, after the expiration of the time for the presentation of claims. Furthermore, the permission was merely to file the "amended claim" on the hearing of the motion. When the court came to consider the matter, it rejected the claim. But it is urged that the allowance of the first claim was a judgment, and that the court could not set aside its action for mere error. But, if it was a judgment in this sense, it was a judgment obtained ex parte, and the rule with reference to the power of a court to revise its own action suffers an exception in the case of ex parte proceedings. This must necessarily be so; for, if an appeal should be taken directly from the "judgment" allowing the claim, it must be heard upon the case made upon the application to the court below; and the opposing party is not heard upon such application, and consequently has had no opportunity to present his side of the question. The only way he has to make a showing is by moving to set aside the "judgment." Exception is taken to the notice of motion to set aside. But the order allowing the claim having been made out of court and without notice, no notice of motion to set it aside was necessary. Code Civil Proc. § 937. Moreover, we think the notice was, under the circumstances, sufficient. We therefore advise that the order be affirmed. We concur: BELCHER, C. C.; FOOTE, C. BY THE COURT. For the reasons given in the foregoing opinion the order is affirmed. (72 Cal. 568) MONROE v. FoпL. (No. 12,048.) 1. PAYMENTS-APPLICATION OF-UNEARNED INTEREST. Payment of a given sum of money on a note four months after date, the interest on the note being payable annually, and the payment exceeding the annual inter est on the note, operates, in the absence of special agreement, as a payment of the principal indebtedness so far as the sum paid exceeds the interest then due, and is not a payment of unearned interest.1 2. MORTGAGE-DEFAULT IN INTEREST PAYMENT-CLAIMING PRINCIPAL DUE-NOTICE. A note secured by mortgage provided that the mortgagee, upon a failure of the mortgagor to pay the interest annually, might elect to have the whole principal become due. Upon the mortgagor's failure to pay the annual interest, the mortgagee left notices at the residence and place of business of the mortgagor with persons of discretion in charge thereof; the mortgagor being absent, and the mortgagee being unable to find him after diligent search. Held, that the notice was sufficient to indicate the mortgagee's election. 3. PLEADING-CONCLUSIONS OF LAW. The execution and delivery of a note payable to the order of plaintiff being admitted, a denial that plaintiff is the "holder" of it and an allegation that a third party is such "holder," without stating any facts showing such to be the case, held to be conclusions merely, and not to raise an issue. 4. MORTGAGE-FORECLOSURE-ATTORNEY'S FEES. Under the California statute of March 27, 1874, entitled "An act to abolish attorney's fees and other charges in foreclosure," when a mortgage provides a certain amount as attorney's fees, it is error for the court to allow more than is specified. Commissioners' decision. Department 2. Appeal from superior court, San Joaquin county. Aug. Muenter and W. B. Nutter, for appellant. Carter, Smith & Keniston, for respondent. HAYNE, C. Action to foreclose a mortgage, the plaintiff claiming that he was entitled to elect, and did elect, to have the principal become due for nonpayment of interest. The plaintiff had judgment on demurrer to the answer and the defendant appeals. We think the answer presented no defense. 1. The note was dated June 25, 1885, and the interest was payable annually. On October 10, 1885, the defendant paid $800 on account of the note, without anything being said on either side as to whether the payment was to be applied to the interest or to the principal. Conceding, in favor of the defendant, that the payment was to be applied first to the interest, it will be so only as to interest up to the date of the payment. The balance of the payment must be applied to the principal. The law will not apply it to future or unearned interest. After making the application as above stated, there remained something over eight months' interest to fall due on June 25, 1886. That balance of interest fell due on that day; for the meaning of the contract is that the interest was to be paid annually from its date, and not annually from any date at which a payment might happen to be made; and the fact that the defendant chose to make the payment above mentioned does not affect the interest on the unpaid principal. The non-payment of this eight months' interest entitled the plaintiff to elect to consider the principal as due. 2. The plaintiff did elect to have the principal become due. The complaint alleges that on July 14, 1886, the plaintiff notified the defendant of his election by leaving a notice at the defendant's residence with a person of discretion in charge of such residence, and by leaving a notice at the defendant's place of business with a person of discretion in charge of such place of business; the defendant being then absent from his residence and place of business, and the plaintiff having been unable, after diligent search and inquiry, to ascertain his whereabouts. The only construction we can give to the answer is that the defendant was not personally notified or "informed" of the election. We think the notice given was sufficient. 3. The execution and delivery of the note payable to the order of plaintiff being admitted, the denial that plaintiff was the "holder" of the note, and 1 Respecting the application of payments, see Gage v. Dudley, (N. H.) 9 Atl. Rep. 786; Robie v. Briggs' Estate, (Vt.) Id. 593; The Martha, 29 Fed. Rep. 708; Magarity v. Shipman, (Va.) 1 S. E. Rep. 109, and note; Murphy v. Reedy, (Miss.) 2 South Rep. 167. |