F. J. Oyler, of Iola, for appellant. ter D. McClain, of Iola, for appellees. MASON, J. Rena Buck Young, on June 6, 1914, obtained a judgment, upon a charge of slander against L. D. Buck. On the 24th of the same month she brought an action to subject to the payment of the judgment lands which, on November 11, 1911, the defendant had conveyed to his wife, and to his foster son, the plaintiff alleging such conveyances to have been fraudulently made for the purpose of preventing the enforcement of her demand. Demurrers to the petition filed by the grantees were sustained, on the ground that the action was begun too late. The plaintiff appeals. (Kan. Bax-, ing upon the issue of diligence may be determined at this time. The defendant's brief presents a chronology of the proceedings, from which it appears that a motion to make the petition more definite was filed by the defendant, and also a demurrer, both being overruled. An answer was filed February 27, 1912. on motion of the plaintiff on April 23, 1912. Matter was striken from the answer The plaintiff was given until May 30th to reply, carrying the case to the October term, when a trial resulted in a disagreement of the jury. The plaintiff then took leave to amend her petition by changing the date, on which the slanderous words were alleged to have been spoken, from September 16, 1911, carried the case to the January term, 1913. to September 15, 1911. This amendment It was continued by agreement until the May term, when, following an order with reference to the making of the amendment to the petition, the defendant was given twenty days to plead to the amended petition, carrying the case over the term. IllSeptember, 1913, term. ness of the defendant prevented a trial at the a trial was had resulting in a verdict for the In February, 1914, plaintiff. This was set aside on the ground of misconduct on the part of the plaintiff's attorney a new trial being had in May. Treating these recitals as though incorporated in the petition. that pleading must still be regarded as stating a cause of action. The facts that one continuance was had by the consent of the plaintiff, and that others resulted from mistake or even misconduct on the part of her attorney, do not show such a want of reasonable diligence in prosecuting the action as to make the delay thereby occasioned fatal to a recovery. [1] 1. An action in the nature of a creditor's bill cannot be brought until the claim in which it is based is reduced to judgment. The plaintiff, however, is required to sue upon the original demand within a reasonable time, which could ordinarily not exceed the period of limitation-two years-from the discovery of the fraud. Donaldson v. Jacobitz, 67 Kan. 244, 72 Pac. 846; 25 Cyc. 1198, 1199. And of course to preserve his rights he is required to follow up his suit with reasonable diligence. Here the slander case was started November 9, 1911, and within three weeks after judgment was obtained the present action was begun. The defense of limitation or laches must therefore be based on the theory that sufficient diligence was not shown in prosecuting the original action. The interval between its beginning and end was In substantially two years and seven months. No facts are pleaded showing why it was not brought to an earlier termination. We do not regard that interval as long enough to create a presumption that the plaintiff voluntarily suffered such a delay as to convict her of a want of reasonable diligence in the prosecution of the case. Underwood v. Fosha, 96 Kan. 549, 152 Pac. 638, it was held that the creditor was not chargeable with such laches as to bar a recovery, although ten years elapsed between the bringing of his action and the procuring of judgment. It is true that there the general history of the litigation was shown, while here nothing is pleaded to explain the delay. But as the action to set aside the deed was brought in less than eight months after the expiration of two years from the execution of the deeds, the pendency of the slander case must be deemed a sufficient explanation as against a demurrer. The judgment is reversed and the cause remanded, with directions to overrule the demurrer. All the Justices concurring. STATE ex rel. SCHOOL DIST. NO. 4 OF 1. STATUTES 64-EFFECT OF PARTIAL IN of chapter 263 of the Laws of 1911, attempting [2] 2. The considerations just stated dispose of the controversy so far as it is formally before us. On both sides, however, it seems to be assumed that the ruling of the trial court was based upon its judicial knowl- 2. SCHOOLS AND SCHOOL DISTRICTS edge of the record in the slander action. As TAX LEVY-CONSTRUCTION OF STATUTE. there is a substantial agreement concerning the Laws of 1911. declaring it to be the duty The language of section 11 of chapter 263 of the material facts in this regard, their bear- of the county superintendent in counties govern For other cases see same topic and KEY-NUMBER in all Kev-Numbered Digests and Indexes ed by the act to certify to the county commis- | show that he refused to perform his duty to sioners and the county treasurer on or before the certify the amount necessary to maintain the 1st day of July in each year the amount of money necessary to aid a district to maintain a high school because he fell out with the dishigh school "for the year ending on the 30th trict board over the employment of a teacher. day of June preceding," and making it the duty It seems that he recommended the hiring of of the county board to make such levy, is construed to mean that the amount certified and a teacher at a salary of $150 per month. The levied shall be the amount necessary to aid the board employed one at a salary of $85, who district to maintain the school for the succeed- had taught the school for the last part of ing year. the previous year. While the statute (section 4) places the high school under the supervision and control of the county superin [Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. § 235; Dec. Dig. —100.] Appeal from District Court, Stanton County. tendent and the district board, it does not give the superintendent the veto power over the board. It contemplates that they shall Mandamus by the State, on the relation of act together for the best interests of the School District No. 4 of Stanton County, school. It would hardly be reasonable to against Elam Hilty, as County Superintend-hold that the school may be closed or deprivent of Stanton County, and others. From ed of all aid from the county at the arbitrajudgment for plaintiff, the defendant named ry will of the superintendent whenever the appeals. Affirmed. board differs with him about the employment of a teacher. Wm. Easton Hutchison and C. E. Vance, both of Garden City, for appellant. Edgar Foster, of Garden City, for appellee. PORTER, J. The school district sought by mandamus to compel the defendant as county superintendent to certify to the county commissioners the amount necessary to aid the high school in the district for the school year 1914-1915. The defendant appeals from a judgment granting the peremptory writ. [2] The only other reason stated by defendant for his refusal to certify the amount necessary to aid the school for the year 19141915 is that after his disagreement with the directors he looked up the statute and construed its provisions to mean that any certificate made by him was to embrace the amount necessary to carry on the school not for the coming year of 1914-1915, but for the previous year. It is true the language of [1] The first contention is that chapter 263 section 11 of the act is not as clear as it of the Laws of 1911 is a special act on a sub- might be, and if construed literally leads to ject which might have been covered by a absurd results. It makes it the duty of the general law, and is therefore in conflict with county superintendent to certify to the counthe provision of section 17 of article 2 of the ty commissioners on or before the 1st day of Constitution. By the title and by section 1 July in each year the amount necessary to the act is made to apply only to counties aid the district in maintaining high schools having a population of less than 10,000. The under the provisions of the act "for the year particular part to which defendant objects is ending on the 30th day of June preceding," section 12 which attempts to further limit and then requires the commissioners to make the operation of the act by excluding from the levy. The word "preceding" was obviousits provisions counties where high schools ly used by mistake and intended to mean were already established under chapter 397 "succeeding," and it has received this conof the Laws of 1905. The argument is that struction generally by the public officers havif the act is of any value it ought to be ex-ing charge of the enforcement of the law. tended to all counties similarly situated. In The defendant had no quibble over the meanthe opinion of the Legislature the fact that ing of this section until his differences with in certain counties high schools had already the school board. He construed it in accordbeen established under the provisions of a ance with common sense the year previous former law was evidently considered suffi- and certified the amount necessary to aid the cient to place those counties in a different school for the year 1913-1914. Of course the class; but it is unnecessary to worry about Legislature could not have intended that the the validity of section 12, since the defendant superintendent should certify what was nechas no interest in that section, Stanton coun-essary to aid the school for the year that was ty having less than 10,000 population and past, or that the county board should make never having had a high school in operation a levy of taxes to pay something already under the laws of 1905. If section 12 were held void, that would not destroy the rest of the statute. The same may be said as to certain objections raised concerning the provisions of section 5. Harrod v. Latham, 77 Kan. 466, 469, 94 Pac. 11, and cases cited in the opinion. Testimony offered by the plaintiff and the paid. To give the construction to section 11 which the defendant now relies upon as an excuse for refusing to perform his duty would render the entire chapter of no force or validity whatever. The defendant suggests no substantial reason for refusing to certify the amount to the board of commissioners, and the judgment L. & M. MERCANTILE CO. v. WIMER.* 1. JUSTICES OF THE PEACE RIGHT. 147-APPEAL (Kan. for by it in its bill of particulars, it has no right to appeal from the judgment of the justice of the peace. The plaintiff's answer to this is that the judgment was rendered in an action not tried; that the plaintiff introof the peace considered that evidence, and enduced evidence in one action, and the justice tered judgment in another action, one not on trial, for an amount $7.60 less than was asked for in the action tried, but being the amout due in the action in which the judgment was rendered; and that no judgment was rendered in the action the plaintiff tried. After the judgment was rendered the plain159-APPEAL-tion, and later to grant a new trial. tiff asked the justice first to dismiss the ache refused to do. The statute providing for an appeal reads: A plaintiff has a right to appeal from a judgment rendered in its favor by a justice of the peace, where a controversy arises as to which one of several actions was tried, and the judgment rendered is not satisfactory to the plaintiff. [Ed. Note. For other cases, see Justices of the Peace, Cent. Dig. §§ 493-501; Dec. Dig. .-147.] 2. JUSTICES OF THE PEACE BOND. An appeal bond in a justice of the peace court is not necessarily void because it fails to follow all the statutory requirements, and, if defective, a proper bond may be filed in the district court. [Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. 88 544, 550-578; Dec. Dig. 159.] This for by law, either party may appeal from the "In all cases not otherwise specially provided district court of the county where the judgment final judgment of any justice of the peace to the was rendered." Gen. Stat. 1909, § 6487 (Civ. Code, § 120). Appeal from District Court, Scott County. Action by the L. & M. Mercantile Com-right to appeal. This statute pany against O. A. Wimer. From judgment for plaintiff, defendant appeals. Affirmed. Lee Monroe, of Topeka, and R. D. Armstrong, of Scott City, for appellant. H. A. Russell, of Scott City, for appellee. MARSHALL, J. This is an appeal by the defendant from an order of the district court denying the defendant's motion to dismiss the plaintiff's appeal from a judgment of a justice of the peace, and from an order of the district court dismissing the action upon the application of the plaintiff. The plaintiff filed five actions at the same time in a justice of the peace court, each for a monthly installment of interest due on a note. Trial was had before the justice of the peace in one action, resulting in judgment in favor of the plaintiff. A controversy then arose as to the action that was tried. On the same day, after judgment was rendered, the plaintiff filed its motion to dismiss the action and afterward filed a motion for a new trial. These were heard and both denied. The defendant then filed a bond for stay of execution. The plaintiff filed an appeal bond, which was approved by the justice of the peace. This bond was in statutory form, except that it did not run to the defendant or any other person, and provided only for satisfaction of such judgment for costs as might be rendered against the plaintiff. The papers were then transmitted to the district court. There the plaintiff tendered a new and sufficient appeal bond. The plaintiff moved to dismiss the action. The defendant moved to dismiss the appeal. The court dismissed the action and denied the fendant's motion to dismiss the appeal. Either party may appeal if places no restriction on the he so desires. The plaintiff was not satisfied with the judgment rendered in its favor. It had a right to appeal. The [2] 2. Another argument of the defendant is that the appeal bond was void, and for that reason no appeal was taken, and the court did not have jurisdiction of the cause. We do not agree with the defendant. appeal bond was defective, but it was not void. A new appeal bond could have been given that would have complied with the statute and have fully protected the defendant. McClelland Bros. v. Allison, 34 Kan. 155, 8 Pac. 239; C., K. & W. Rld. Co. v. Town-Site Co., 42 Kan. 97, 104, 21 Pac. 1112; St. L., K. & S. W. Ry. Co. v. Morse, 50 Kan. 99, 105, 31 Pac. 676; Ottawa v. Johnson, 73 Kan. 165, 84 Pac. 749, 9 Ann. Cas. 707; Elliott v. Bellevue, 82 Kan. 78, 80, 107 Pac. 794. The appeal bond was sufficient to give the district court jurisdiction. That court could have compelled the plaintiff to give a new bond or could have dismissed the appeal upon failure of the plaintiff so to do. The judgment is affirmed. All the Justices concurring. McCUE v. HOPE. (No. 19840.) (Supreme Court of Kansas. Jan. 8, 1916.) (Syllabus by the Court.) ACCOUNT STATED 8, 12 LIMITATION OF ACTIONS 37 - FRAUD RIGHT TO OPEN ACCOUNT EVIDENCE OF CORRECTNESS. Two parties who owned the stock of a corporation agreed that one of them should purcertain price, the purchaser to pay the outstandchase the stock and interest of the other for a de-ing liabilities of the company, and a settlement between them was effected on the basis of an acplete list of all of the assets and liabilities of count stated, which purported to contain a comthe company, and was a part of their written [1] 1. The defendant argues that because the plaintiff recovered the judgment asked For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes here. agreement. In an action subsequently brought Upon these rulings plaintiff brings the case by the purchaser he alleged that the account stated was incorrect, in that it omitted certain It is contended by defendant that the parts specified liabilities of the company of which he had no knowledge, and which he has been com- stricken out of plaintiff's petition were impelled to pay; that the account was not only material for the reason that the petition incorrect, but it was fraudulently made so by showed upon its face that the action was one the seller. Held, that the action is one to reopen the account and settlement and remake it for relief upon the ground of fraud, and, bein accordance with the agreement of the parties; ing brought more than two years from the that such an account stated is only prima facie time the fraud was alleged to have been disevidence of its correctness; that it may be open-covered, it did not state a cause of action. ed up for mistake or fraud; that the averments of fraud of the seller as stated in the petition were pertinent and proper; and that the action pleaded is not to be regarded as one for relief on the ground of fraud, and therefore is not barred by the two-year statute of limitation. [Ed. Note.-For other cases, see Account Stat-formed a part of the written agreement. This ed, Cent. Dig. §§ 50-56, 73-76; Dec. Dig. Defendant also complains that the court should have sustained his demurrer as to the second count of plaintiff's petition. The action is based on the account stated, which account purported to contain an itemized list 8, 12; Limitation of Actions, Cent. Dig. 88 of all the assets and liabilities of the com182-186, 477; Dec. Dig. 37.1 pany. The account is an acknowledgment of the statements made therein as well as of li Appeal from District Court, Finney County ability, but it is only prima facie evidence Action by B. M. McCue against J. W. Hope. of its correctness. It may be opened up for From adverse rulings on motions to strike mistake or fraud and corrected within a reaand demurrer to plaintiff's petition, he ap-sonable time. Clark v. Marbourg, 33 Kan. peals. Reversed in part and affirmed in part. F. Dumont Smith, of Hutchinson, for appellant. Wm. Easton Hutchison and C. E. Vance, both of Garden City, for appellee. JOHNSTON, C. J. Plaintiff and defendant, who were each the owners of one-half of the capital stock of the Garden City Land & Immigration Company, in November, 1910, entered into a written contract whereby defendant was to transfer to plaintiff his stock in said corporation in consideration of which plaintiff was to cause the corporation to convey certain properties and securities to defendant, and assume and pay all debts and obligations of the corporation and relieve the defendant from any liability on account thereof. Attached to the contract was a statement of the condition of the company, with a guaranty that the same was correct "errors and omissions excepted." This action for the sum of $5,557.49 was brought by plaintiff in the year 1914, who alleged in his petition that soon after the transaction above mentioned it was discovered that at the time of the exchange of property the corporation owed certain obligations, totaling $2,114.98, a half of which was claimed and sued for in plaintiff's action; that these obligations were not shown upon the statement, and that the defendant, conniving with the bookkeeper of the corporation, one Chan. B. Campbell, had concealed the existence of these obligations. As a second cause of action, plaintiff alleged that at the time of the transaction mentioned, defendant had in his possession $4,500 of the corporate funds, the existence of which fact he also concealed. The court sustained a motion made by defendant to strike out all allegations of fraud, and also sustained a demurrer as to the first count of plaintiff's amended petition, but 471, 6 Pac. 548; Schmoker v. Miller, 89 Kan. 594, 132 Pac. 158; 1 Cyc. 451. It is alleged that the account in question is not only incorrect in that a number of liabilities of the company, which the plaintiff has since been compelled to pay, were omitted, but that this was done through the connivance and fraud of the defendant. Fraud being one of the grounds for opening and correcting the account, the allegations that the settlement and accounting were fraudulently done were pertinent and proper, and the ruling striking out the averments as to the fraud of the defendant cannot therefore be sustained. That the account is open to correction is shown further by a provision of the agreement made between the parties. In it is a statement that the account is correct "errors and omissions excepted," and therefore on its face it does not purport to be a finality. It is insisted by the defendant that the case should be treated as an action for re lief on the ground of fraud, and that, so considered, it was barred after two years from the time it accrued. It is rather an action to open up an account and settlement between the parties, to make a new settlement, and to adjust the rights of the parties under their written agreement. The mere fact that mistakes occurred, or that there was deception practiced in the settlement sought to be set aside so that a new settlement may be made, does not make the action one for relief on the ground of fraud. It is still an accounting under the written agreement, and does not fall within the two-year statute of limitations. The decision of the trial court striking out of the petition the averments of fraud, as well as the one sustaining a demurrer to the first count of the petition, is reversed, and the decision overruling the demurrer to the second count of the petition is affirmed. All ROUTH v. WEAKLEY. (No. 19830.) (Syllabus by the Court.) 1. MUNICIPAL CORPORATIONS this reasoning is that it loses sight of the fact that, to be chargeable with contributory negligence, she must have had the capacity, not only to know the danger ordinarily involved in the conduct mentioned, but to realize and appreciate the risk under the circumstances in which she was placed, and to exercise the judgment and discretion necessary to avoid it. Evidence was given that there had been a disagreement between her and two other girls, that they ran after her, and that she was a little bit afraid, and ran away from them. Whether in this situation she used the care reasonably to be expected of a child of her age, intelligence, and experience was a fair question for the jury. She may have known as an abstract proposition that there was danger in being upon the traveled part of the street without watching where she was going, but have lacked the discretion to keep this in mind while seeking to escape from the children who were pursuing her. It has been held in other [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 1518; Dec. Dig. states that even a very young child who 706.] Appeal from District Court, Wyandotte County. Action by Winnie Routh against J. J. Weakley. From judgment for plaintiff, defendant appeals. Affirmed. James F. Getty, of Kansas City, for appellant. L. O. Carter, of Kansas City, for appellee. MASON, J. A girl 81⁄2 years old ran diagonally out from the sidewalk into a muchtraveled city street, and was struck and ed by an automobile. Her mother brought an action against the owner, and recovered a judgment, from which he appeals. crosses a street car track without looking for an approaching car, or who on seeing it attempts to cross in front of it, may be held guilty of contributory negligence as a matter of law. Poland v. Union Railroad Company, 26 R. I. 215, 58 Atl. 653, and cases there cited. Here, however, there is room for the inference that the decedent's conduct was affected by her fright; that panic over an imaginary danger made her forgetful of a In any event the result is conreal one. trolled by a recent decision of our own. Ratkill-cliffe v. Speith, 95 Kan. S23, 149 Pac. 740. Differences between the facts of that case and of this are pointed out by the defendant, but they are important only as affecting his conduct. Upon the question of contributory negligence the two cases are substantially parallel. There a girl 13 years of age collided with an automobile while she was running diagonally across a street and looking in the opposite direction, toward some boys who were throwing Osage apples at her. True, in the present case there is a specific finding that the decedent knew it was dangerous to run out upon the street without looking ahead of her. But in the other it was said of the injured girl that: [1] 1. A reversal is asked principally on the ground that the undisputed facts and the special findings establish such contributory negligence on the part of the decedent as to preclude a recovery. The jury found that she had been accustomed to passing the place of the accident on her way to and from school; that she knew that the street was there greatly used by automobiles and other vehicles; that she knew it was dangerous to run diagonally from the sidewalk out into the portion of the street traveled by vehicles without looking ahead of her; and that just prior to being run over, and while looking behind her, she suddenly and quickly turned off from the walk and ran toward and in front of the automobile. Based on the rule that her age is of importance only as an indication of her mental capacity, the argument is made that, since it was established that she knew it was dangerous to run out into the street without looking ahead of her, and that she did this very thing, the conclusion is unavoidable that she failed to exercise ordinary care, according to the standard applicable to the case. The fault of "She was sufficiently mature to understand the peril of stepping in front of an automobile even when running at a rate of from six to eight miles an hour." [2] 2. The defendant maintains that a peremptory instruction in his favor should have been given on the ground that the petition made no charge of ordinary negligence, but only of wantonness, of which there was no evidence, and also that, considered as a whole, the evidence in behalf of the plaintiff showed conclusively that there was no negligence in operating the automobile. The petition characterized the defendant's con For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |