desired to use them for the purpose of burying the dead. No power is given by the statute to such corporations to convey the property for any other purpose, and the fact that the lots and subdivisions are made unchangeable, and that the power is restricted to conveyances of 'any lot or lots

for purposes of sepulture,' operates as a limitation upon the power of the corporation to convey the land to 'a lot or lots,' and for the uses named. Upon dedication the dominion of the corporation over the land as owner in fee simple was surrendered, and the corporation became, in effect, a trustee to sell and convey the lots for the purposes specified, and to carry out the purposes enumerated in the statute, with the right to appropriate the proceeds of the sale to itself in payIment of the land. Each lot owner became a member of the corporation, in the sense that he was entitled to participate in all elections for officers to manage the corporate business; and each was interested not only in the particular lot conveyed to him, but in the entire ground of the cemetery, to be kept as an entirety, and to be perpetuated and cared for by a corporate body."

We are of the opinion that this is a public corporation; that, in the election of its officers and the management of its business, it is controlled by the lot owners; that there are no stockholders, and the shares of stock issued in this corporation were unauthorized, and the sale or assignment conveyed nothing to the purchasers; and that the plaintiffs are entitled to the relief demanded.

It is ordered that the defendants deliver to the plaintiffs all books, papers, maps, plats, surveys, and records, and all other property whatsoever, belonging to said corporation, and that defendants, and each of them, be ousted and removed from the office now held by them, and that the costs hereof be paid by them. All the justices concurring.

(65 Kan. 726)

CLARK v. MILLER et al. (Supreme Court of Kansas. Nov. 8, 1902.) In banc. On rehearing. Affirmed. For former opinion, see 68 Pac. 1071.

PER CURIAM. The importance of the question involved in this action was such as to induce us to rehear it before the full bench, and, after such rehearing and full consideration, we conclude that the law as indicated in the opinion heretofore handed down was correct; hence the former judgment of this court will be affirmed.

SMITH, J., dissenting.

(65 Kan. 621)

ELLIS v. FLAHERTY et al. (Supreme Court of Kansas. Nov. 8, 1902.)

DEMURRER TO EVIDENCE.

1. Where the pleading of the plaintiff states a cause of action in tort, and entirely fails to

state any facts sounding in contract, and the evidence of the plaintiff wholly fails to prove the alleged tort, but does tend to prove a right of action on contract, the court should sustain a demurrer to the evidence.

(Syllabus by the Court.)

In banc. Error from district court, Nemaha county; W. I. Stuart, Judge.

Action by Ellen Flaherty against S. W. Ellis and George Flaherty. Judgment for plaintiff in a justice court, and Ellis appealed to the district court, where it was affirmed, and he brings error. Reversed.

Crane & Woodburn, for plaintiff in error. Redden, McKeever & Hayden, for defendants in error.

GREENE, J. The defendant in error sued George Flaherty and plaintiff in error in conversion before a justice of the peace of Ne maha county. The bill of particulars alleged that "the plaintiff, Ellen Flaherty, complains of defendants, S. W. Ellis and George Flaherty, and says that on or about the 18th day of May, 1900, she was the owner of twenty-six (26) hogs, of the value of two hundred six and 45/100 dollars ($206.45); that on said date said defendants, S. W. Ellis and George Flaherty, converted the same to their own use,"-and prayed judgment for their value, with interest from the date of the alleged conversion. George Flaherty and plaintiff were brother and sister, living together on a farm in Nemaha county. The defendant Ellis resided in Pottawatomie county. Service was had upon Flaherty in Nemaha county, and, by reason of the alleged joint liability, summons was issued to and served upon Ellis in Pottawatomie county. Judgment was rendered in the justice of the peace court against Ellis and George Flaherty, from which Ellis appealed to the district court. Judgment was rendered against Ellis in the district court, to reverse which he prosecutes this proceeding.

The plaintiff in error introduced no evidence at the trial of the cause in the district court, and the only evidence offered by plaintiff below was the testimony of herself and George Flaherty. At the conclusion of her testimony, the defendant Ellis demurred to the evidence, which was overruled.

It appears conclusively from the evidence that the defendants below, neither jointly nor severally, were guilty of conversion. George Flaherty sold the hogs in question to Ellis with the knowledge and consent of Ellen Flaherty. The undisputed evidence is that previous to this time he had been in the habit of transacting such business for his sister, and that in this particular transaction he was acting for her, with her knowledge and consent. The jury returned special findings of fact, among which are the following: "(2) In the sale and delivery of the hogs in question in this action, did George Flaherty act for himself, or as agent for Ellen Flaher

ty? A. For Ellen Flaherty." "(4) Were the hogs sold and delivered to S. W. Ellis? A. Yes." "(6) Did plaintiff consent that the hogs should be sold to S. W. Ellis? A. Yes. (7) Did the agent act in accordance with his authority in the matter? A. Yes. (71⁄2) Did the defendant George Flaherty convert any of the hogs to his own use? A. No. (8) Did he deliver all the hogs to S. W. Ellis? A. Yes. (9) Was he authorized by plaintiff to do so? A. Yes." "(13) Did S. W. Ellis take the hogs in question from plaintiff without her consent? A. No. (14) Has the plaintiff ever demanded the hogs of S. W. Ellis? A. No." In the absence of any evidence tending to establish conversion, the court should have sustained the demurrer, and rendered a judgment for defendant Ellis.

It is urged here, however, that it is a rule of practice recognized by this court that where the variance between the petition and the facts proved are such that an amendment to the petition ought to be allowed to conform to the facts proved, the judgment will not be reversed on account of such variance. This rule is stated thus in Jung v. Liebert, 44 Kan. 304, 24 Pac. 474: "Where there is a variance between the allegations of a bill of particulars and the facts proved and specially found by the jury on the trial, yet, if it be a case where an amendment to a bill of particulars ought to be allowed, to conform it to the facts proved and found, the judgment in favor of the plaintiff will not be reversed on account of the variance, if no substantial rights of the defendant have been prejudiced." We think, however, in this case, that no amendment ought to have been allowed. Conceding the facts proved established a right of recovery in contract, we have no precedent authorizing an amendment of the petition in tort to one on contract. The evidence tending to support the one will not support the other. While one whose property has been converted may waive the tort and sue upon what the law determines to be an implied contract, if, however, he elects to sue in tort he may not thereafter, and upon the trial, amend his petition or pleading so as to set up a cause of action on contract. This is not an amendment. It is a substitution of one cause of action for another and entirely different cause of action. Section 139 of the Code provides for the amendment of pleadings to conform to the facts proved, when such amendment does not change substantially the claim or defense; but it nowhere authorizes, by way of amendment, the substitution of one cause for another. In Culp v. Steere, 47 Kan. 746, 751, 28 Pac. 987, 989, this court used this language: "The statute does not provide that the amendment shall not change the form of the action or cause of action, but it simply provides that the amendment shall not 'change substantially the claim or defense." It is intended by this language to make a distinction between the cause of action pleaded and the

claim of the plaintiff, it is disapproved. The word "claim," as therein used, is synonymous with "cause of action." It is said in Degraw v. Elmore, 50 N. Y. 1: "The Code does not authorize a recovery, where the complaint alleges facts showing a cause of action in tort, by proving upon the trial a cause of action in contract." Again, in Neudecker v. Kohlberg, 81 N. Y. 296, 297, it is said: "Where a complaint states a cause of action ex delicto, it is not competent at the trial to convert it into one ex contractu." This position is well fortified by authority. Givens v. Wheeler, 6 Colo. 149; Lumpkin v. Collier, 69 Mo. 170; People v. Circuit Judge, 13 Mich. 206; Ross v. Mather, 51 N. Y. 108, 10 Am. Rep. 562. The plaintiff having wholly failed to prove a cause of action in tort, the bill of particulars was not amendable to convert her action into one on contract. The demurrer to the evidence should have been sustained.

- The judgment of the court below is reversed, and the cause remanded, with instructions to sustain the demurrer to the evidence. All the justices concurring.

(65 Kan. 582)

CONKLIN v. CITY OF HUTCHINSON.* (Supreme Court of Kansas. Nov. 8, 1902.) CONSTITUTIONAL LAW-SPECIAL ACT-CHANGE OF CITY LIMITS.

1. By section 1, c. 301, Laws 1895, the legislature sought to vacate the lots, blocks, streets, and alleys in Miller's North addition to the city of Hutchinson. In section 5 of the same act it is provided that the land so vacated shall remain within the city, and be a part thereof, notwithstanding any law to the contrary. At the time said chapter 301 of the Laws of 1895 was passed, chapter 66 of the Laws of 1893 (page 141, Gen. St. 1901) was in force, providing that an act of vacation by the legislature should ipso facto detach the land vacated from the city, and that it should no longer remain a part thereof. Held, that the legislative intention to keep the vacated addition within the corporate limits of the city is made clear by the language of section 5 of chapter 301, Laws 1895, and that said section being void by reason of its conflict with section 5, art. 12, of the constitution, prohibiting the enlarging or contracting of the limits of a city except by general law, the whole act in which section is found must fall. It cannot be held that the lawmakers would have enacted the other sec tions of the act, with section 5 omitted. (Syllabus by the Court.)

In banc. Error from district court, Reno county; M. P. Simpson, Judge.

Action by J. E. Conklin against the city of Hutchinson. Judgment for plaintiff, and defendant brings error. Affirmed.

W. G. Fairchild, for plaintiff in error. H. S. Lewis, City Atty. (Vandeveer & Martin, of counsel), for defendant in error.

SMITH, J. By chapter 301, Laws 1895, the legislature sought to vacate the lots, blocks, streets, and alleys of four additions to the city of Hutchinson. Sections 1 and of said chapter read:

Rehearing denied January 27, 1908.

"Section 1. That all lots, blocks, streets and alieys in G. C. Miller's North addition to the city of Hutchinson, Reno county, Kansas, be and the same are hereby vacated; and that the fee in such streets and alleys shall revert back to, and be in the owners of such lots and blocks; such real estate being the northwest quarter of section number seven (7), township number twenty-three (23), range number five (5) west, in said county.

"Sec. 5. Said lands so vacated in the city of Hutchinson shall be and remain within the boundary of said city and be a part thereof, notwithstanding any law to the contrary."

At the time the above act was passed, chapter 66 of the Laws of 1893 was in force. Section 2 of the latter act reads:

"Sec. 2. If any town site, or portion of a town site containing more than five acres, shall hereafter be vacated by the board of county commissioners or by act of the legislature, and such town site, or portion of a town site, is at the time a part of a city of the first, second or third class, the act of vacation thereof shall of itself detach the same from such municipal corporation, and it shall no longer be a part of such city, nor included within the corporate limits thereof."

In November, 1899, the plaintiff in error was the owner of the tract of land known as G. C. Miller's North addition to the city of Hutchinson, consisting of 126 acres. He sought to enjoin the collection of city taxes levied on the same, for the reason that since the vacation of the addition by the act of 1895 the property was no longer a part of the city, nor included within its corporate limits, by the express language of the act of 1893. A general demurrer was sustained to his petition.

It is conceded on both sides that section 5 of the act of 1895 is void for the reason that it conflicts with section 5, art. 12, of the constitution, which ordains that provision for the organization of cities shall be made by general law. City of Wyandotte v. Wood, 5 Kan. 603; Gray v. Crockett, 30 Kan. 138, 1 Pac. 50; Callen v. Junction City, 43 Kan. 627-633, 23 Pac. 652, 7 L. R. A. 736. In Gray v. Crockett, supra, it was held that no special act of the legislature, having for its purpose an enlarging or contracting of the limits or boundaries of a city, is constitutional. Counsel for plaintiff in error contends that section 5 in the law of 1895 is distinct and severable from the remainder of the act, and that its constitutional invalidity in such case cannot affect the other sections; that the act of vacation may stand, though section 5, attempting to retain the property within the city, may fall. This contention would be sound if we could say that the legislature would have enacted the other sections of chapter 301 of the Laws of 1895 with section 5 omitted. We must consider that the legislature had in mind the

law of 1893, above referred to, when it passed the act of 1895. The passage of a special law vacating the lots, blocks, streets, and alleys of an addition to a city would bring the land vacated within the operation of section 2 of chapter 66, Laws 1893, which provides that the act of vacation ipso facto excludes the addition from the corporate limits. It is clear that the purpose of the enactment of section 5 in the special act was to keep the vacated property within the city and subject to its jurisdiction, notwithstanding that the general law after the passage of the special one would exclude it. Having a purpose and design in the use of section 5, can we say that the legislature would have passed the law vacating the land, with that section omitted? It must be answered in all cases that the legislature, when it passes a law, intends that every part of it is to be given effect. When it appears, as it does here, that the passage of the invalid section may have been the inducement or compensation for the passage of the constitutional sections, then a removal of the void part must cause the whole act to fall. This question is ably discussed by Brewer, J., in Central Branch U. P. R. Co. v. Atchison, T. & S. F. R. Co., 28 Kan. 453. The case of Slauson v. City of Racine, 13 Wis. 398, quoted from on page 459 of the opinion, is nearly parallel in its facts with the case at bar. We are firmly of the opinion that it was the fixed purpose of the lawmakers to keep the land within the city, by the insertion of the provisions of section 5 in the act, and that the law would not have passed without the inclusion of that section. We hold, therefore, that the whole of the special act is void.

(Supreme Court of Kansas. Nov. 8, 1902.) ASSAULT WITH INTENT TO KILL-SELF-DEFENSE-DUTY TO RETREAT.

1. A person unlawfully attacked by another is not compelled to yield or retreat, no matter what the character of the attack made may be. He is justified in standing his ground and repelling force by such reasonable force as may, under all the circumstances of the case, appear necessary to successfully resist the attack made.

2. One unlawfully assailed has the same right of self-defense, and the right of self-defense to the same extent in defending his person from great bodily harm, that he has in defending his life.

(Syllabus by the Court.)

In banc. Appeal from district court, Rawlins county; A. C. T. Geiger, Judge.

John V. Petteys was convicted of assault with intent to kill, and appeals. Reversed.

G. Webb Bertram, Waters & Waters, Case & Case, and Albert Hemming, for appellant. A. A. Godard, Atty. Gen., and Fred Robertson, for appellee.

FOLLOCK, J. This is the second appearance of this cause in this court. In the view we take of the case, a statement of the facts surrounding the tragedy is unnecessary. Appellant and his father, S. P. Petteys, were jointly informed against, under section 38 of the crimes act, charged with the commission of the offense of assault with intent to kill one Albert Felker by shooting the said Felker with a revolver. The trial court held the information sufficient to charge the offense defined in section 42 of the crimes act. Under the authorities, we think the holding correct. The plea of self-defense was interposed by the defendant upon his separate trial. The jury returned the following verdict: "We, the jury impaneled and sworn in the above-entitled case, do, upon our oaths, find, from the law and the evidence, the defendant, John V. Fetteys, guilty of wounding Albert Felker in the manner charged in the information filed, under circumstances which would have constituted manslaughter in the fourth degree if death had ensued from such wounding." The conviction was upheld, and defendant sentenced to three years' confinement in the penitentiary at hard labor. The extreme penalty of the law, had the assault resulted in the death of Felker, under the facts as found by the jury, would have been two years. Many grounds of error are specified. We shall consider but one.

The court charged the jury in regard to the right of self-defense as follows: "A person may repel force by force, in defense of his own person or that of his parent against one who manifestly intends or endeavors, by violence or surprise, to commit a known felony on either. A person is not compelled to flee from his adversary who assaults him with a deadly weapon before he can justify the use of a like weapon, but the assault must be so fierce as not to allow the person assailed to yield a step without manifest danger to his life or of great bodily injury. In such case, if there be no other way of saving his life, he may, in self-defense, even kill his assailant." Complaint is made of this instruction. It is argued by counsel for appellant that under this instruction the right of self-defense in the use of a deadly weapon is precluded in all cases where the nature of the attack is not so fierce but that the assailed might retreat, and thus avoid a conflict. We think the criticism made upon the instruction is just. It is not the law of this state that one unlawfully attacked by another is compelled to flee, no matter what the character of the attack made may be. One unlawfully assailed is justified in standing his ground and repelling force by such reasonable force as may appear necessary, under the circumstances, to resist the attack. rule is clearly stated in State v. Reed, 53 Kan. 767, 37 Pac. 174, 42 Am. St. Rep. 322, as follows: "A party who is unlawfully attacked by another may stand his ground and use such force as at the time reasonably

The

He is jus

appears to him to be necessary. tified in acting upon the facts as they appear to him, and is not to be judged by the facts as they actually are." State v. Howard, 14 Kan. 173. We also think this instruction open to another serious objection. The last sentence in the instruction, as given, would preclude a defendant from the right of selfdefense to the extent of taking the life of his assailant, unless it became necessary to save his own life. One has the same right of self-defense, and the right of self-defense to the same extent in defending his person from great bodily harm, or in saving the life or protecting the person of his parent from great bodily harm, if such defense appears to be reasonably necessary under all the circumstances in the case, that he has to preserve his own life.

It follows, the giving of this instruction was erroneous, and for this reason the judgment must be reversed. All the justices concurring,

(65 Kal. 639)

KANSAS & T. COAL CO. v. CAREY. (Supreme Court of Kansas. Nov. 8, 1902.) REVIVAL OF JUDGMENT-NOTICE.

1. The notice required of an application to revive a judgment is that the judgment debtor shall be served with such notice a reasonable time before the hearing, and on consideration of the facts herein, where 16 days intervened between the service of notice and the hearing of the application, it is held to have been sufficient notice.

(Syllabus by the Court.)

In banc. Error from district court, Reno county; M. P. Simpson, Judge.

Proceeding by the Kansas & Texas Coal Company against Emerson Carey to revive a judgment. Order of revivor set aside on defendant's motion, and plaintiff brings er

ror. Reversed.

C. V. Ferguson and H. Whiteside, for plaintiff in error. Prigg & Williams, for defendant in error.

JOHNSTON, J. This was a proceeding to revive a judgment rendered April 3, 1894. On February 12, 1900, the Kansas Coal Company filed a motion in the district court for the revival of the judgment. On the following day a notice of the filing of the motion, and the time when it would be heard, was delivered to the sheriff of the county; and it was served on the defendant, Carey, on the 15th day of February, 1900. The notice stated that the motion would be heard on March 3, 1900, and was otherwise sufficient in matter and form. On the day named, the court heard the application; and, while the defendant did not appear, his attorney of record was present in court, and heard the motion and the evidence which was introduced. The court entered an order of revivor, but on the 14th day of March, 1900, the defendant made a special appearance,

and moved to set aside the order because of insufficient notice. This motion was sustained, and the order of March 3, 1900, reviving the judgment, was set aside. The contention of the defendant, Carey, is that sufficient notice was not given him of the hearing of the application for the order. As has been seen, the notice was served on the defendant 16 days before the order reviving the judgment was made. He contends that a notice is to be regarded as a summons, and that, as a defendant is given 20 days after the return day of the summons in which to answer, 20 days is the minimum time for notice of an application to revive.

In the matter of revivor the Code provides that: "If the order is made by the consent of the parties the action shall forthwith stand revived, and if not made by consent notice of the application for such order shall be served in the same manner and returned within the same time as a summons upon the party adverse to the one making the motion, and if sufficient cause be not shown against the revivor the order shall be made." Section 428. Section 534 of the Code provides that the notice of a motion shall be filed in writing, and also what it shall contain; and section 535 provides that notices of motions may be served by officers or private persons, and upon whom such notices may be served; and section 536 provides, "The service of a notice shall be made as required by law for the service of a summons, and when served by an officer he shall be entitled to like fees." The Code, as will be observed, does not limit or fix the time which shall intervene between the giving of notice and the hearing of the motion. It does provide that the notice shall be served in the same manner as a summons, --that is, by delivering a copy of the same to the defendant personally, or by leaving one at his usual place of. residence,-and whether there may be constructive notice we need not now inquire. That provision has reference to the mode of service, and not to the time of hearing. There is the further provision that the notice shall be returned within the same time as a summons, and that is required to be done at the time therein stated, and within 10 days from its date. That, however, is an injunction to the officer or person who makes the service, and has nothing to do with the hearing, or to the time which shall elapse between the service and the hearing. Another provision of the Code does relate to the time of notice of motions, and that is section 534 of the Civil Code. In addition to specifying what the notice shall contain, it provides that "it shall be served a reasonable time before the hearing." No other limitation is prescribed in this respect, and the starting place is the service, and not the date of the notice, nor the return of the one who serves it. It is incumbent on the moving party, fixing the time of hearing, to name a date in his notice that will give the party notified a rea

sonable time after service in which to prepare for the hearing. A proceeding in revivor, however, is of such a nature that a long time is not required for preparation. Here 16 days' notice was given of the hearing at which the first order was made. In our view, that afforded not only a reasonable, but abundant, time in which to make preparation. Nothing is found in the testimony tending to show that it was insufficient.

The district court therefore erred in setting aside the order of revivor, and its judgment, to that extent, will be reversed. All the justices concurring.

(55 Kan. 585)

NELSON v. STULL et al. (Supreme Court of Kansas. Nov. 8, 1902.)

ATTACHMENT-CLAIMS NOT DUE.

1. The remedy of attachment on claims not due, provided in sections 230, 231, Code Civ. Proc. (sections 4677, 4678, Gen. St. 1901), is a right given a creditor, not simply a matter of grace springing from the discretion of the court or judge.

(Syllabus by the Court.)

In banc. On rehearing. Affirmed.
For former opinion, see 68 Pac. 617.

R. R. Rees and J. E. Mulligan, for plaintiff in error. M. J. Keys and Humphrey & Humphrey (E. C. Little, of counsel), for defendants in error.

CUNNINGHAM, J. Upon the petition of the defendant in error, the court ordered a rehearing of this case, and, upon very careful consideration of briefs filed and argument made upon such rehearing, we think there was no error in the former judgment. We are more than ever convinced that the proceeding was substantially a garnishment of effects in the hands of the executors, but, whether this be true or not, still, defendant in error should not have prevailed, at least in this form of an action, because of the statute of limitations. An extended, elaborate, and ingenious argument is made to the effect that proceedings in garnishment under our statute are but another form of a creditors' bill, and, as the general rule is that in such actions the period of limitation does not commence to run until judgment is obtained against the principal defendant.-that being the time when the right of action accrues, therefore in this case the defendants in error had two years from the time their notes matured in which to bring the action. The premises are not warranted by the facts. Neither garnishment nor attachment | proceedings, under our statute, is a creditors' bill. In such actions, using the language of this court in Tennent v. Battey, 18 Kan. 324, 330: "The only right the plaintiffs have under the attachment is to use such measures as may be necessary to preserve this security until they can reduce their claim to judg