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preme court, the record of which is alleged

(55 Kan. 113) to contain a copy of the proceedings that

STATE V. KINDIG. was introduced in evidence. When the case

(Supreme Court of Kansas. April 6, 1895.) was settled, the defendant objected to the

CRIMINAL LAW-CHANGE OF VENUE-TRIAL ON attempt to incorporate the records of a cause

CERTIFIED RECORD. in another court by a mere reference thereto. 1. Where a change of venue of a criminal The proceedings in question cannot be treat- cause is actually made by a district court to ed as a part of the record in this case, nor

some other county in the same district in which

the offense is alleged to have been committed, can they be considered in this review. The

upon the written application of the defendant papers and proceedings to which we are re- that the minds of the inhabitants of the county ferred, not having been included in this case

in which the cause is pending are so prejudiced made, were never served upon the bank, and

against him that he cannot have a fair trial

therein, such order is not fatally defective behence no amendments thereto could have cause it omits to specify the cause of rèmoral. been suggested by it. The papers and pro

2. Where a criminal cause is properly receedings were therefore never settled by the

moved for trial from one county to another

county in the same judicial district, the district district court as a part of this case made.

court, having jurisdiction of the cause by such The original case made in the other cause to remoral, may try the defendant upon a certified which we are referred is a permanent record

transcript of the record and proceedings, and

such trial court has authority to require the of the supreme court, and there is no au

defendant to plead to a certitied transcript of thority to take the same out and place it in the information, instead of upon the original inthe control of the district court. The theory

formation.

3. Section 10 of the bill of rights guaran. of proceedings in error is that each tran

ties to the accused in a criminal cause a trial script and case made shall be complete in by a jury of the county or district in which the itself. It has been said that “each proceed- offense is alleged to have been committed. This ing in error is distinct and independent of

constitutional right or personal privilege may be

waived with the consent of the accused, but the other, and the errors assigned in each

this provision of the bill of rights is of the highproceeding are to be determined upon its est importance, and, unless the removal of the own record. In determining errors assigned

cause to a county in a different judicial district

is clearly shown by the record to have been in this proceeding, we must look alone to the

made with the consent of the accused, the re matters and things revealed by the present moval is without any authority of law. record, and cannot examine or be governed 4. The record in this case examined, and by anything on the files of this court in a

held not to show that the accused waived his

constitutional right to be tried within the judiformer proceeding in error, although it was cial district in which the offense with which he brought to review a former judgment ren- is charged is alleged to have been committed. dered in this case.” Railroad Co. v. An- (Syllabus by the Court.) drews, 34 Kan. 563, 9 Pac. 213. If the prac- Appeal from district court, Thomas countice was allowed of making cases by refer- ty; Charles W. Smith, Judge. ence to other records in this court, it would R. 0. Kindig was convicted of receiving a follow that a plaintiff in error might refer to deposit for his bank, knowing the bank to be any record or document on tile in any of the insolvent, and appeals. Reversed. public offices of the state, and thus the court On the 7th of October, 1893, an information would be required to gather up and consider, was filed in the district court of Decatur counas a part of the case, that which had never ty charging R. 0. Kindig, as cashier and man. been served upon opposing counsel nor set- ager of the State Bank of Oberlin, with haytled by the court as a part of a true and ing on the 12th of July, 1893, unlawfully re correct case made. Such a practice, while it ceived a deposit of $63.25 for said bank, when might lessen the trouble and expense of those he knew the bank at that time was insolvent. making a case, would lead to uncertainty At the October term of the court for 1893 and confusion; but as the issues and pro- of Decatur county the state, with leave of ceedings of a cause can be easily abridged, the court, filed an amended information. and may be so tersely stated in a Thereupon the defendant filed his written apmade, the argument of convenience and ne- plication for the court to grant him a change cessity can have little weight. It has been of venue to the district court of some other held that the evidence and proceedings in the county in the Seventeenth judicial district, uprecord of one cause could not be considered on the ground “that the minds of the inhabin another and different cause in an appel- itants of the county of Decatur, the county in late court, even upon the stipulation of par- which the said case is now pending, are so ties that it should be considered in the lat- prejudiced against the defendant that a fair ter. Lowe v. Riley (Neb.) 60 N. W. 96; trial cannot be had therein.” This applicaJungeman v. Brewing Co., 38 Mo. App. 458, tion was supported by 25 affidavits. After 463. See, also, Rich v. Starbuck, 45 Ind. hearing the application, and being fully ad310; Mayberry v. Morse, 39 Me. 105; Elliott, vised thereof, the court made the following App. Proc. $ 197.

order: "The venue of said cause is changed to In the absence of the evidence upon which Cheyenne county, in said Seventeenth judicial the decision of the district court rests, we district, and the trial of said cause is set for the cannot say that its judgment is without sup- November, 1893, term of said district court, port. Judgment affirmed. All the justices sitting in and for said county and state." concurring.

The trial of the case was continued from the

case

November term of 1893 to the April term of of the court or judge, and shall specify the 1894. At the April term of the district court cause of removal, and designate the county to of Cheyenne county for 1894, and on the 5th which the cause is removed." It is claimed day of April, the venue was changed from upon the part of the state that a plea of not Cheyenne county to Thomas county, in the guilty was entered before the application for Thirty-Fourth judicial district. The record removal of the cause was granted, but that on that point reads: “Counsel for defendant the plea was unintentionally omitted from the thereupon called the court's attention to para- record. This, however, is immaterial. It is graph 5238, Gen. St. Kan., and especially to held to be better practice to arraign the dethe third clause thereof, viz. that the court fendant, and require him to plead to the inhad heretofore been counsel for the state in formation before making an order for a said cause. Thereupon it appearing to, and change of venue; but where the defendant being within, the knowledge of the judge pre- applies for the change, and has the benefit of siding and the court that theretofore, as coun- arraignment in the county to which the cause ty attorney of Decatur county, Kansas, where is transferred, he has no right to complain said cause was originally begun and filed, as that the change was made before his arraignsuch officer, he had verified, filed the informa- ment. Hudley v. State, 36 Ark. 237. See, tion therein, and acted as counsel for the also, Ex parte Cox, 12 Tex. App. 665. As the state in the said cause, therefore, and for such removal was actually made upon the applicareasons, it is ordered, considered, and adjudg. tion of the defendant, and as he had the bened by the court that the venue in said cause efit of arraignment in Cheyenne county, there be changed to the county of Thomas, in the was no material error in transferring the case state of Kansas, the same being within the to that county for trial before the plea was Thirty-Fourth judicial district of the said entered. State v. Potter, 16 Kan. 80. The state. And it is further ordered by the court better rule is that the statute should be literthat the clerk of the district court in and for ally complied with, and the ground for a Cheyenne county, Kansas, forward, forthwith, change be fully spread on the record. But it to the clerk of the district court of Thomas appears in this case that the removal was accounty, Kansas, a true, correct, and complete tually made upon the written application of transcript of all pleadings, complaints, in- the defendant, and the showing made by him formations, recognizanre, and records of said upon affidavits that he could not have a fair cause. To which order of the court the de- trial in the county where the information was fendant then and there asked an exception filed. The application of the defendant for a to be entered.” At the June term of the court removal of the cause must be read in connecfor Thomas county for 1894, when the state tion with the order of the court granting the attempted to offer evidence, the defendant ob- same, and therefrom it appears that the rejected to the introduction of any testimony, moval was allowed upon the application of upon the ground “that the court had no juris- the defendant, and for the cause specified diction to hear and try the case, and also upon therein. the ground that the jury were not impaneled 2. It is next insisted that the district court from the county or district in which the of- of Cheyenne county committed error in enterfense was alleged to have been committed.” taining jurisdiction of the cause after removThis objection was overruled. On the 230 al, and requiring the defendant to plead to day of June, 1894, the jury returned a verdict a certified transcript of the information. Not of guilty against the defendant. Subsequent- Nothing but a transcript of the record ly the defendant filed a motion in arrest of and proceedings is authorized to be transmitjudgment, and also for a new trial. These ted by the district clerk to the county to motions were overruled. The court sentenced which the case is removed. State v. Riddle, the defendant to confinement to the state peni- 20 Kan. 711. tentiary for the period of three years, and also 3. It is further insisted that the removal of adjudged that he pay the costs of the prose- the cause from Cheyenne county, in the Sevcution. The defendant appeals.

enteenth judicial district, to Thomas county, Bertram & McElroy and J. R. Hamilton &

in the Thirty-Fourth district, was without auSon, for appellant. John T. Little, Atty. Gen.,

thority of law. By section 10 of the bill of and C. Angevine, for the State.

rights, a defendant in a criminal cause is

guarantied a trial by a jury of the county or HORTON, C. J. (after stating the facts). district in which the offense is alleged to have It is insisted that the district court of Chey- been committed. Undoubtedly the provision enne county had no jurisdiction of this case securing to the accused a public trial, within on a change of venue from Decatur county, the county or district in which the offense is because the order of removal was made prior committed, is of the highest importance. It to any plea to the information, and because prevents the possibility of sending him for the removal did not specify the cause there- trial to a remote district, at a distance from for. Section 179 of the Criminal Code reads: friends, among strangers, and perhaps par“Every order for a removal of any cause, un- ties animated by prejudices of a personal der the foregoing provisionsshall state or partisan character. But a defendant may whether the same is made on the application waive dis constitutional right or personal of the party or on facts within the knowledge privilege by his consent. State v. Potter,

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supra; In re Holcomb, 21 Kan. 628. Upon is pending in Cheyenne county, and all prothe part of the state it is insisted that the ceedings subsequent to the attempted removal removal of the cause from Cheyenne coun- from that county must be ignored. The case ty to Thomas county was made with the may proceed to trial in Cheyenne county, as consent of the defendant, and that he can- if no removal had been attempted. The judg. not now complain. But we do not so read ment will be reversed, and cause remanded the record. The defendant did not make any for further proceedings in accordance with written or oral application for the removal of the views herein expressed. All the justices the cause to Thomas county or to any differ- concurring. ent district. After the cause had been removed to Cheyenne county, counsel for the defendant called the court's attention to sec

(55 Kan. 124) tion 173 of the Criminal Code, and especially CITY OF LARNED V. JORDAN. to the third subdivision thereof, which pro- (Supreme Court of Kansas. April 6, 1895.) vides for transferring a case to a different ELECTION OF REMEDIES-INSOLVENT BANK-TRUST district, "where the judge is in any wise in

FUND-ESTOPPEL. terested or prejudiced or shall have been coun- 1. Where a party has an election between sel in the cause.” But when the court made

two inconsistent remedies, and with knowledge

of the important facts affecting his right selects an order removing the case to Thomas county one remedy and establishes his claim, he canthe defendant objected, and had his exception not subsequently abandon such remedy, and entered of record. Again, when the case was adopt another. called for trial in Thomas county, the de

2. Where a bank having possession of a

trust fund belonging to a city, which it had refendant raised the question of the jurisdiction ceiveld on deposit from the city treasurer, makes of the court, and objected to that court pro- an assignment of all of its property for the ceeding with the trial. Under paragraph 1965,

benefit of its creditors, and subsequently the

city demands of the city treasurer the payment Gen. St. 1889, of the act concerning district

of the money, which he deposited in the incourts, a judge pro tem. may be selected solvent bank, and when this is refused also “when the judge is interested, vr has been of

makes a demand upon the bondsmen of such counsel in the case or subject matter thereof,

treasurer, and thereupon one of the bondsmen

presents to the assignee of the bank a demand or is related to either of the parties, or oth- for the aniount of the deposit, and alleges erwise disqualified to sit." So, under the therein "that the bank is justly indebted to statute, a defendant may be tried before a

this afliantas bondsman for the amount of judge pro tem., where the district judge is

the deposit upon the following claim, to wit:

Upon the deposit account as above stated, in disqualified by interest or otherwise, or he the sum of $1,615.18, which this affiant claims as may, with his consent, have the cause re- bondsman of F. J. Mathias, city treasurer aforemoved to a different district. In this case

said;" and further alleges: "This certificate of

proof being made in behalf of G. Krouch and there was no express consent on the part of the the other bondsmen of said F. J. Mathias, city defendant to have the cause removed from his treasurer;" and the assignee allows to the district. The most that can be said is that he

bondsman the full amount of the demand pre

sented by him, and thereafter issues to such consented inferentially to such removal by

bonilsman a check for the amount of the first calling the court's attention to section 173 of dividend made upon the claim, and the bondsthe Criminal Code. He did not expressly re

man turns this over to the city treasurer, and quest that the cause be transferred to a dif

it is credited upon the account of the defaulting

treasurer,--held, that the city thereby does not ferent district under the provisions of that sec- become a general creditor of the insolvent bank, tion. On the other hand, he expressly objecte: nor is it estopped from pursuing the trust fund to the transfer. If counsel for the defendant

in the hands of the assignee of such bank. misled the court at first in referring to sec

(Syllabus by the Court.) tion 173 of the Criminal Code, defendant is Error from district court, Pawnee county; not concluded, because he objected to the or- S. W. Vandivert, Judge. der to transfer. Before the order of removal Action by the city of Larned against M. A. was entered of record, the court was fully in- W. Jordan, as assignee. Defendant had judgformed that the defendant did not consent, ment, and plaintiff brings error. Reversed. but positively objected to having his cause At the general election in April, 1892, F. J. sent to a different district. The constitu- Mathias was elected, and in due time qualitional guaranty, securing to an accused a trial fied, as the treasurer of the city of Larned. within the county or district in which the of- in this state. In April, 1893, he was elected, fense is committed, ought not to be annulled and in due time qualitied and continued to upon a mere inference or implication. There- perform the duties of treasurer, until July 1, fore, upon the recordd, we cannot say that the 1893, when he resigned. While city treasdefendant consented to the removal of the urer he was also cashier and general mancause to a different district, or that he waived ager of the Pawnee County Bank, of which his constitutional right to be tried in the dis- bank H. Mathias, his father, was president; trict in which the offense is alleged to have G. Krouch, vice president; and G. Hartstein, been committed. Under the provisions of the a stockholder. On March 7, 1893, F. J. Maconstitution and the statute, the removal of thias received the sum of $5,121.74 belonging the cause from Cheyenne county to Thomas to the city, and of his own motion, without county, against the objection of the defend- any express authority from the city, but with ant, was without authority of law. The cause the knowledge of the officers of the Pawnee

County Bank, deposited the same in that bank. The real issue in the election at which Mathias was chosen city treasurer was whether the city funds should reinain in the First National Bank or be transferred to the Pawnee County Bank. Upon the election and qualification of Mathias, the money was removed by him from the First National Bank, and immediately deposited in the Pawnee County Bank to the credit of the city of Larned, and continued to be so kept till the failure of that bank. All the city moneys received by him were added to this deposit, and all moneys paid out were paid upon checks drawn by him in the name of the city of Larned. This was done openly, and the city officers knew of it at the time, and particularly the finance committee, which from time to time examined and audited Mathias' accounts. The bank closed its doors on July 1, 1893, and made an assignment. M. A. W. Jordan was appointed assignee of the bank, and was thereafter duly elected and qualified, and has ever since been the qualified and acting assignee. Demand was made on F. J. Mathias, as city treasurer, by the proper authorities, for the city funds in his hands. He was unable to comply with the demand, and it was then ascertained that he had defaulted to the amount of $1,615.18. Plaintiff, as one of the creditors of the bank, was duly notified of the time fixed for the election of a permanent assignee, and was also duly notified of the time and place of allowing claims against the estate. F. J. Mathias, as city treasurer, gave a bond to the city, with G. Krouch, H. Mathias, and G. Hartstein as sureties, and after the assignment G. Krouch, as bondsman, appeared and made proof of a claim against the bank as follows: "State of Kansas, Pawnee County-ss.: Personally appeared before me, the undersigned, a notary public in and for said county and state, G. Krouch, of Larned, Kan., who, being duly sworn, says that he is one of the bondsmen of F. J. Mathias, city treasurer, who deposited the money in his hands in said bank, as city treasurer, to the credit of Larned city; that the city of Larned has demanded the money of this affiant, as city treasurer's bondsman; that the Pawnee County Bank, of Larned, Kansas, is justly indebted to this affiant as bondsman in the sum of four thousand six hundred and forty-five dollars and 18 cents, upon the following claim, to wit: Upon the deposit account, as above stated, in the sum of $4,645,18, which this affiant claims as bondsman of F. J. Mathias, city treasurer aforesaid; this certificate of proof being made in behalf of G. Krouch and the other bondsmen of said F. J. Mathias, city treasurer. All of which is due and payable to himself alone, he having given no indorsements or assignments of the same, or any part thereof; and he further says that he knows of no set-off or other legal or equitable defense to said claim, or any part thereof. Name, G. Krouch. Residence, Larned, Ks. Sworn to and subscribed

before me this 6th day of December, A. D. 1893. Witness my hand and notarial seal. [Seal.] George W. Finney, Notary Public."

This proof was filed with M. A. W. Jordan, as assignee, and by him allowed as such assignee, on December 6, 1893. On the 13th day of January, 1894, the assignee declared a dividend of 10 per cent. This dividend, upon the claim allowed to G. Krouch, amounting to $464.51, was paid January 13, 1894, by a check of M. A. W. Jordan, as assignee, to G. Krouch, bondsman. This was turned over to T. McCarthy, as city treasurer, who succeeded F. J. Mathias, and it was credited on the account of F. J. Mathias, the defaulting treasurer. On the 23d day of January, 1894, the city of Larned brought an action on the official bond of Mathias, as city treasurer, which suit was subsequently dismissed by it. On August 11, 1894, while the action on the bond was pending, the plaintiff having learned that another dividend was about to be declared by the assignee, and without making any demand upon the assignee to be made a preferred creditor, and without tendering back to the assignee the amount received from G. Krouch, the bondsman of F. J. Mathias, commenced this action, and procured a restraining order to be served upon the assignee, enjoining him from declaring or paying such dividend or any other until the further order of the court. Issues were joined, and the case tried at the September, 1894, term of the court without a jury. Judgment was rendered for the defendant. The plaintiff excepted, and brings the case here.

G. P. Cline and Ady, Peters & Nicholson, for plaintiff in error. W. H. Vernon and F. D. Smith, for defendant in error.

HORTON, C. J. It is admitted in this case that the money deposited in the Pawnee County Bank was a trust fund, and never belonged to the bank. It is further admitted that the assets of the bank came into the hands of M. A. W. Jordan, as assignee, impressed with the trust. Myers v. Board, 51 Kan. 87, 32 Pac. 658. It seems also to be admitted upon the part of the defendant below that it would have been possible for the plaintiff, at the time the assignee took charge of the assets of the Pawnee County Bank, to have maintained this action to subject all of such assets to the payment of the trust fund; but it is contended that the city had another remedy, which it elected to pursue, and, hav. ing made a choice between two inconsistent remedies, it is estopped to claim the other. The contention is that, after the city received notice of the time and place of allowing demands against the estate of F. J. Mathias, the defaulting treasurer, due proof of the account of the city against Mathias was made for the city of Larned; that this was allowed to it as a general creditor; that subsequently the city, as a creditor of the bank, received a dividend of $461.51; that it still retains this money, and cannot now claim the deposit

made by F. J. Mathias as a trust fund. If it adopt the demand of Krouch as an allowwere true that the city, through its proper ance to the city. McLeod v. Evans, 66 Wis. officials, had presented to the assignee of the 401, 28 N. W. 173, 214; City of Leavenworth Pawnee County Bank a demand on account v. Rankin, 2 Kan. 357. The assignee of the of the deposit as a general creditor, and had bank did not recognize the city as a creditor obtained an allowance of any part thereof, in allowing the demand of Krouch, and did then, having made an election with a knowl- not recognize the city as a creditor, or enedge of the important facts affecting its titled to the allowance or to any part of the rights, it could not abandon its first election, dividend thereon, when it made its first divi. and adopt the opposite remedy. Plow Co. v. dend payable to G. Krouch, bondsman. UnRodgers, 53 Kan. 743, 37 Pac. 111. But in less Krouch pays voluntarily to the city this case neither the city of Larned, nor its the dividends that he may receive upon his city treasurer, nor any of its officers, present- demand, the city, even if it had not ened any demand to the assignee of the bank joined the payment of further dividends, for allowance. The city demanded the mon- could not obtain any part thereof. Upon ey due from F. J. Mathias of G. Krouch and the authority of Myers v. Board, 51 Kan. 87, other bondsmen, and G. Krouch presented to 32 Pac. 658, the judgment will be reversed, the assignee his demand, alleging "that the and cause remanded for a new trial. All bank is justly indebted to this affiant, as the justices concurring. bondsman, for the amount of the deposit, upon the following claim, to wit: Upon the deposit account, as above stated, in the sum

(55 Kan. 283) of $4,645.18, which this affiant claims as FT. SCOTT, W. & W. RY. CO. et al. v. bondsman of F. J. Mathias, city treasurer

SPARKS. aforesaid”; and further alleging: "This cer

(Supreme Court of Kansas. April 6, 1895.) tificate of proof being made in behalf of G.

INJURY TO PASSENGER-CONTRACT OF CARRIAGE. Krouch and the other bondsmen of said F.

1. A written contract with a railway comJ. Mathias, city treasurer,-all of which is

pany, signed by the shipper of live stock, providdue and payable to himself alone.” Krouch ing that such shipper, while being carried upon did not attempt in the presentation of his de

the train transporting his stock, shall remain

in the caboose car attached to the train while mand to act for the city, or to present any the same is moving, is valid and binding beclaim or demand in behalf of the city. No tween the parties thereto. Such a contract is a allowance was made to the city of Larned by reasonable one, intended for the safety and conthe assignee. The assignee allowed the de

venience of the shipper, as well as for the pro

tection of the railway company carrying him, mand of G. Krouch only. Whether this al- It does not contravene any law or a sound publie lowance was properly made or not by the as- policy. signee we need not now inquire. The city

2. The admitted facts and the special find

ings of the jury examined, and held thereon that of Larned could not obtain any dividend

S., a shipper of live stock, who had signed a from the assignee upon the allowance made written contract with the railway company to to Krouch, and, when the dividend was paid

remain in the caboose car attached to the train by the assignee, the check was not made to

carrying his stock, while the same was moving,

is not entitled to recover for injuries received by the city or to its city treasurer, or to any offi- him while voluntarily standing or walking up cer of the city. The assignee, in accordance on a moving car, in violation of the terms of his with the proof of the demand of Krouch, is

contract. sued to him a check for the 10 per cent. divi

(Syllabus by the Court.) dend, amounting to $164.51. This was turn- Error from district court, Harvey county; ed over to the city treasurer, and credited L. Houk, Judge. upon the account. If Krouch, as a bondsman Action by J. H. Sparks against the Ft. of F. J. Mathias, had paid $100 or any other Scott, Wichita & Western Railway Company sum to the city treasurer to satisfy a part of and the Missouri Pacific Railway Company the indebtedness of F. J. Mathias, it would for personal injuries. Plaintiff had judg. have been the duty of the city treasurer to ment, and defendants bring error. Reversed. have accepted the same and properly credited On the 13th day of July, 1883, J. H. Sparks it. This is all that was done, according to commenced his action against the Ft. Scott, the record as presented. There is nothing in Wichita & Western Railway Company and the record showing that the city of Larned the Missouri Pacific Railway Company to reconsidered itself a creditor of the Pawnee cover $50,000 for personal injuries which he County Bank, or ever presented any demand alleged resulted to him from the negligence of or ratified the proof of any demand made by the companies. Trial had at the February any other person to the assignee of the bank, term of the court for 1890, before the court as a creditor.

Therefore it does not appear with a jury. On the 3d day of March, 1890, from the record that the city of Larned has the jury returned a verdict in favor of attempted to pursue two inconsistent reme- the plaintiff and against the defendants for dies. In fact the city has declined to be $10,000, and also made special findings of recognized as a general creditor of the bank. fact in writing. On the 3d of March, 18, By accepting the check issued to G. Krouch, the railway companies filed their motions for as bondsman, and applying this upon its ac- judgment in their favor upon the special tind. count with F. J. Mathias, the city did not ings of the jury notwithstanding the geo

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