fully control its official action. Railway Co. v. Meyer, 58 Kan. 305, 49 Pac. 89; Gen. Stat. 1909, § 9037. Pierce v. Butters, 21 Kan. 125, 129, however, we find a precedent almost identical with the case at bar. There the question was whether a notice first published on April 13th and last published on April 27th was a sufficient compliance with a statute requiring notice for three consecutive weeks. Mr. Justice Valentine said: "They amended the other affidavit by filing a new and amended affidavit, showing that said notice was published in said weekly newspaper for three consecutive weeks, to wit, April 13 to April 27, 1877'; that is, we construe the affidavit to mean that there were three inserwit, one on April 13, one on April 20, and one tions of the notice in the said newspaper, to on April 27, 1877, and, with this construction, we think the affidavit as thus amended was sufficient." It may readily be conceded that, where a statutory board is created for the discharge of a special duty, the rule in Railway Co. v. Meyer, 58 Kan. 305, 49 Pac. 89, should be strictly adhered to. But the public business of municipal corporations arises from day to day, and should be attended to as it arises. It is imperative that the functions of local municipal government be not suspended in case of a vacancy in the city council. If there are sufficient members of the council remaining in office who vote for and sanction the work to be done or the project to be undertaken to constitute a majority of the entire constituent membership, and not merely a majority of a quorum, it seems that their official action is valid. Tending to support this viewing the county treasurer, antecedent to sale are Satterlee v. San Francisco, 23 Cal. 314; State ex rel. Harty v. Kirk, 46 Conn. 395; Knoxville v. Knoxville Water Co., 107 Tenn. 647, 64 S. W. 1075, 61 L. R. A. 888; 2 Dillon, Municipal Corporations (5th Ed.) § 534; 2 McQuillan, Municipal Corporations, §§ 593, 594. An examination of section 1357 of the General Statutes of 1909 is helpful. It is there provided that permanent removal from the city causes a vacancy in any city office. Then it proceeds thus: "Vacancies in the offices of mayor and councilmen shall be filled for the unexpired term at a special election to be called and held for that purpose, as may be provided by ordinance." Now it cannot be the law that the public business of Goodland should be suspended until an ordinance is passed regulating the calling of an election to fill a vacancy in the office of city councilman, and until an election is called thereunder, the result canvassed and declared, and the person elected and seated. [5] 4. Turning next to the question of notice, the statute (chapter 124, Laws 1913, § 4) provides that, before the bond ordinance is enacted, a notice shall be published to advise the citizen taxpayers of the projected bond issue. It reads: "Such notice shall be published for at least three consecutive weeks * ** prior to the date fixed therein for the passage of such ordinance." The notice was published on March 13th, March 20th, and March 27th. Apparently the city proceeded on the theory that a notice published each week for three successive weeks was a sufficient compliance with this provision. The gist of appellant's contention is that, since three weeks are twentyone days, notice should have been given for that period. It is not an easy matter to harmonize all the decisions touching the computation of time for notice, interpreting as they do the vast multitude of statutes which in one way or another prescribe notice as a condition precedent to official action. In Again, in Tidd v. Grimes, 66 Kan. 401, 71 Pac. 844, it was held that a statute requir of property for delinquent taxes, to cause a notice to be published "once a week for four consecutive weeks," was sufficiently complied with by four publications, one each separate and successive week, the dates of publication being August 6th, August 13th, August 20th, and August 27th-covering only twenty-two days. It will be observed that this section under scrutiny (section 4) also provides that: "The last publication [of the three consecutive weeks] shall not be more than ten days prior to the date fixed therein for the passage of such ordinance." This provision was strictly observed. The last publication was on the day preceding the passage of the ordinance. The two prior publications were made in the two preceding weeks. In view of the precedents quoted and this definite language of the statute touching the proper time for the last publication, we must hold that the notice published first on March 13th and last on March 27th, covering Idates included in three separate and successive weeks, was sufficient. [6] 5. It is next urged that the statute (chapter 124, Laws of 1913) violates.sections 16, 17, and 20, art. 2, of the state Constitution. These objections do not call for much discussion. The act in question cannot be said to cover more than one subject, which is a grant of power to certain cities to enlarge, repair, extend, and improve their waterworks systems. The details of the act are all pertinent to the main subject. We think also that the classification of the cities, those second and third class cities which own their waterworks and whose indebtedness does not exceed 15 per cent. of their assessed valuation, is not unreasonable nor violative of the uniformity clause of the Constitution. To raise a suspicion or presumption against the regularity of this statute's legislative history, the appellant directs our attention to Senate Joint Resolution No. 16, which immediately follows the act in question (page 201), and which orders the insertion of an enacting clause in the act. This joint res olution does not, as contended by appellant, amend the statute. It merely voiced the determination of the Legislature to amend the bill before it became a statute. The enrolled bill on file with the secretary of state shows the enacting clause duly inserted. The joint resolution was regularly adopted by a constitutional majority of each house while the bill itself (Senate Bill No. 491; chapter 124, Laws of 1913) was still within legislative control, and one day before it was approved by the Governor (Senate Journal, 789; House Journal, 1123). The Legislature always has the right to make corrections or germane amendments to a bill until the Governor has acted upon it. 36 Cyc. 951. It may recall a bill from the Governor unless he has signed it. 36 Cyc. 959. In this case we think the Legislature was needlessly formal in its procedure to perfect the bill. The joint resolution correcting the error has no more pertinency in the published book of session laws than would the roll call on the bill, or the motions and speeches directed toward it in the course of its consideration by the Legislature. 36 Cyc. 951. The objections to the act are without merit. From the foregoing it will be seen that no prejudicial error arose in the district court in sustaining the demurrer to plaintiff's petition. The defendant contends that probable cause for the prosecution was established by the evidence. No special findings of fact were requested. The only index to the jury's view of the facts is the general ver dict. This verdict brings to the plaintiff's aid every fact and every inference of fact favorable to him which the testimony sustains. The defendant's narrative of the things relied on as constituting probable cause was not conceded to be true. On the other hand, the plaintiff's account of what happened leading up to the prosecution was quite incompatible with that of the defendant, and the explanation of the verdict is that the jury believed the plaintiff. It is said that the defense of advice of the county attorney was established. Here again it is to be assumed that the jury disbelieved the story which the defendant told the county attorney. The advice of the county attorney on a state of facts intentionally magnified or fabricated would not be a defense. Besides this, accepting the story which the defendant told the county attorney, he omitted to inform the county attorney of a number of material facts which, if mentioned, would have changed the course of subsequent events. There was abundant evidence to sustain the finding of malice included in the gen APPEAL AND ERROR 1064 MALICIOUS - TYPO Instructions to the jury considered, and held not to be prejudicially defective. The evidence considered, and held to sustain the verdict. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. 88 4219, 4221-4224; Dec. Dig 1064; Malicious Prosecution, Cent. Dig. §§ 45-48; Dec. Dig. 22.] Appeal from District Court, Franklin County. Action by Carl E. Rorschach against C. A. Diven. From judgment for plaintiff, defendant appeals. Affirmed. Ralph E. Page, of Ottawa, for appellant. W. S. Jenks, of Ottawa, for appellee. BURCH, J. The action was one for damages for malicious prosecution. The plaintiff recovered, and the defendant appeals. The instructions to the jury contained the following: "I pass now to the defense in this case. There are several items set up by way of defense. The defendant Diven claims, first, that there was probable cause, and has given you his version of the facts. I have undertaken to group these facts as given by the plaintiff when instructing you touching probable cause, and I think I can say no more.' Through a typographical error the word “plaintiff" was inserted in the instruction instead of the word "defendant." This is perfectly manifest, and was perfectly manifest to the jury, because the court had not grouped the facts given by the plaintiff when instructing on the subject of probable cause, but had grouped the facts given by the defendant. Another criticism of the court's instructions is unwarranted because a sin gle expression is seized upon dissociated from the context which made the subject under discussion plain. The instructions of the court were full, clear, correct, and phrased in a way to enable the jury to apply them to the evidence. The evidence was abundant to support the verdict, and the judgment is affirmed. All the Justices concurring. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (97 Kan. 61) proper motion under rule 10, but the statute TUCKER v. TUCKER (EAGLE, Intervener). leaves this court without jurisdiction unless (No. 19822.) (Supreme Court of Kansas. Jan. 8, 1916.) (Syllabus by the Court.) APPEAL AND ERROR 345-NOTICE OF AP- the appeal be taken within six months from the rendition of the judgment or order appealed from. Laws 1913, c. 241, § 1. This jurisdiction is vested by statute only, and no estoppel, laches or informality of a party can confer it. Neither does failure A judgment was rendered April 17, 1914. A motion for new trial was filed in time, but to raise the question relieve us of the duty was not decided until November 14, 1914. The to decline, even of our own motion, the exnotice of appeal, served November 19, 1914, recited that the intervener appealed "from the ercise of jurisdiction which we do not posjudgment and decision of this court entered sess. Cohen v. Trowbridge, 6 Kan. *385; herein about April 17, 1914." Held, that such Hodgden v. Com'rs, 10 Kan. *638; Toof v. notice was too late, and the appeal must be dis- Cragun, 53 Kan. 139, 35 Pac. 1103; Zinkeisen missed for want of jurisdiction. V. Lewis, 71 Kan. 837, 80 Pac. 44, 83 Pac. 28; Kansas City v. Dore, 75 Kan. 23, 88 Pac. 539; Hawkins v. Brown, 78 Kan. 284, Syl. 1, 97 Pac. 479; Trader v. School District, 86 Kan. 878, 122 Pac. 895; Nuhfer v. Flanagan, 87 Kan. 420, 124 Pac. 418. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 1895, 1896; Dec. Dig. 345.] Appeal from District Court, Shawnee County. Action by W. H. Tucker against Arthur Tucker, wherein Charles S. Eagle intervened. From the judgment, intervener appeals. Appeal dismissed. Garver & Garver, of Topeka, for appellant. Hamilton & Hamilton, W. E. Atchison, and W. B. Lowrance, all of Topeka, for appellee. The appeal is dismissed. All the Justices concurring. (97 Kan. 21) TANNER v. CHEROKEE & PITTSBURG COAL & MINING CO. (No. 19783.) (Supreme Court of Kansas. Jan. 8, 1916.) (Syllabus by the Court.) MASTER AND SERVANT 278, 286-INJURY TO PROOF. A demurrer to the plaintiff's evidence was properly sustained on the ground that the specific negligence charged was not proved, and on the further ground that no actionable negligence on the part of the defendant was established. WEST, J. This appeal involves the validity of a chattel mortgage, a question ably briefed and presented, but the pleasant duty of considering and determining this question is obviated by the somewhat unpleasant obligation resting upon us to dismiss the appeal. The journal entry recites that the judgment was rendered April 17, 1914. A [Ed. Note.-For other cases, see Master and motion for new trial was filed within three Servant, Cent. Dig. 88 954, 956-958, 960-969, 971, 972, 977. 1001, 1006, 1008, 1010-1015, days, but was not passed upon until Novem-1017-1033, 1036-1042, 1044, 1046-1050; Dec. ber 14, 1914. November 19, 1914, the no- Dig. 278, 286.] tice of appeal was served and aside from caption and signature was in the following language: "Notice is hereby given that Charles S. Eagle appeals to the Supreme Court from the judgment and decision of this court, entered herein about April 17, 1914, on the interplea of Charles S. Eagle, in so far as said judgment and decision holds the chattel mortgage of said Charles S. Eagle to be invalid." Appeal from District Court, Crawford County. Action by W. E. Tanner against the Cherokee & Pittsburg Coal & Mining Company. From a judgment for defendant, plaintiff appeals. Affirmed. L. H. Phillips, of Pittsburg, for appellant. W. R. Smith, of Topeka, and B. S. Gaitskill and D. H. Woolley, both of Girard, for appellee. It will be observed that this notice was served more than seven months after the date of the rendition of the judgment. When the motion for a new trial was decided, the BURCH, J. The action was one for damtime for appeal from the original judgment | ages for personal injuries sustained through had already expired. Hence it was neces- the neglect of the defendant to inspect and sary in order to present a matter of which make secure the traveling ways of its coal we would have jurisdiction to appeal from mine. A demurrer was sustained to the the order denying the motion for a new trial. plaintiff's evidence, and he appeals. This was not done. The notice limited the appeal to the original judgment, or to such part thereof as upheld the validity of the mortgage. It is urged that the plaintiff should not be heard on his motion or suggestion in his brief that the appeal be dismissed for the reason that he should have called attention of the court to the matter in proper time and by The proof was that the plaintiff, who was an air man, was injured in a hauling crosscut which had been closed some months before the accident. The crosscut was no longer used and could not be used as a traveling way. The only occasion any one had to use it after the manner of a traveling way was to step into it twice a month to inspect the stopping, and the place was perfectly safe For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes for that purpose. As will shortly appear, when the plaintiff was injured the place was no more a traveling way or in use as a traveling way than a miner's room would have been. Consequently the negligence charged was not established. MARSHALL, J. Reinhardt Peter died in 1904, leaving a widow, Johanette Peter, three daughters, Bertha, Lucy, and Carrie, and a son, Herman. The daughters were all married. Carrie, who afterwards died, left as her heirs her husband, the plaintiff, and two daughters, Nellie and Eva. Upon returning from the funeral of Reinhardt Peter, Johanette produced the will before the assembled children, and informed them the father had told her before his death that he had left all the property to her; that if they were not satisfied and did not want to take her word for it, the will should be opened and they could see for themselves. this the children said they were satisfied, and told her it was all right, and not to file the will on account of the expense. Το The The stopping was not air tight, and the plaintiff was directed to make it so. To do this it was necessary to build a wall on one side of the defective stopping and fill the space between the wall and the defective stopping with fine dirt. Dirt for the purpose was taken from the bottom of the crosscut. In doing this the plaintiff dug a hole about two feet deep which loosened a rock which fell and injured him. The plaintiff and his principal witness, his brother, who was assisting him when the accident occurred, testified that digging in the bottom of the cross-plaintiff was present and said he was satiscut loosened the rock and caused it to fall. fed to leave it that way. From that time The plaintiff further testified that digging in the will remained in the Peter home in the the ground there was bound to be dangerous, possession of Johanette Peter until Septemthat he was "leery" all the time, and that the ber 15, 1913, when it was probated. There more he dug the more dangerous he made the was no exception taken to the order of the place. The case, therefore, is one in which contest of the will has been instituted in the probate court; no appeal was taken, and no district court. The will was always in the house, and any one interested could get it if they wanted it. All the estate of the testator, consisting of about 43 acres of land in Wyandotte county, Kan., was devised to Johanette Peter in fee simple. She has occupied the land, collected the rents, and paid the taxes thereon continuously since the death of her husband. The plaintiff, as heir of his wife, Carrie, claimed an undivided onesixteenth interest in the land, and brought this action to recover the same. On the trial the court rendered judgment for the defend the plaintiff with knowledge of the conditions made the place unsafe by the very repair work he was doing. The duty of the employer to provide a reasonably safe place to work does not extend to such situations. The defendant had elected not to be governed by the Workmen's Compensation Act, and the plaintiff argues that the defenses of contributory negligence and assumption of risk were not available. The defendant does not seek to avail itself of those defenses. The defense is want of actionable negligence. Want of actionable negligence appeared from the plaintiff's proof, and the demurrer to the evidence was properly sustained. The judgment of the district court is ants. The plaintiff appeals. affirmed. All the Justices concurring. (97 Kan. 63) FREEMAN v. PETER et al. (No. 19824.)* (Supreme Court of Kansas. Jan. 8, 1916.) (Syllabus by the Court.) The plaintiff contends that because the will was not offered for probate within three years after the death of the testator, the devisee Johanette Peter received nothing under the will, and that the land descended to the heirs of Reinhardt Peter. This would be correct but for the conduct of the heirs. ESTOPPEL 78-CLAIM FOR INHERITANCE. The heirs of a deceased person are estopped They with the plaintiff led defendant Johanfrom claiming any part of the estate by inheri- ette Peter to believe that it was not necestance where by their conduct they have induced sary to do anything with the will. She rethe widow, to whom all the property was devis-lied on their statements and acted on them. ed, not to probate the will, and the will is not probated for more than three years after the death of the testator, although in the power and control of the devisee during all that time. [Ed. Note. For other cases, see Estoppel, Cent. Dig. §§ 204-210; Dec Dig. 78.] Appeal from District Court, Wyandotte County. Action by Evert E. Freeman against Johanette Peter and others. From judgment for defendants, plaintiff appeals. Affirmed. W. H. McCamish, of Kansas City, for appellant. John D. Myers, of Kansas City, Mo., for appellees. The plaintiff seeks to take advantage of the failure to have the will probated in proper time. He, personally and as heir of his deceased wife, is estopped from so doing. The conversation between the widow, the plaintiff, and the children of the testator partakes somewhat of the nature of a family settlement of the rights of the heirs in the property left by Reinhardt Peter, and under the circumstances surrounding this case that settlement should not be disturbed. The judgment is affirmed. All the Justices concurring. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Idence is conflicting, a refusal to direct a verdict (97 Kan. 73) (Supreme Court of Kansas. Jan. 8, 1916.) NEW TRIAL DICT. 39-GROUNDS-DIRECTED VER A new trial is properly granted when the court, disregarding pleaded defenses sustained by evidence, has instructed a verdict for the plaintiff. [Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 57-61; Dec. Dig. 39.] Appeal from District Court, Allen County. Action by the State Savings Bank of Iola against Charles Michael and others. From judgment for defendants, plaintiff appeals. Affirmed. Apt & Apt, of Iola, for appellant. Baxter D. McClain, of Iola, and J. T. Cooper, of Fredonia, for appellees. [Ed. Note. For other cases, see Appeal and 2. APPEAL AND ERROR 1067 HARMLESS questions requested by a party is not materially prejudicial when substantial repetitions and when the answers to those submitted clearly inrecov-dicate that answers to those refused would not have benefited the party complaining. The refusal to submit two of ten special BURCH, J. The action was one to er on a promissory note. The court instructed the jury to return a verdict for the plaintiff. Afterwards the court granted a new trial. The plaintiff appeals. Error, Cent. Dig. 88 4212-4218; Dec. Dig. 4. CARRIERS 333 INJURY TO STREET CAR [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1385, 1386, 1388-1397; Dec. Dig. 333.] SPECIAL Michael, Fowler, and Farmer gave their note to the plaintiff and secured it by a chattel mortgage on property contained in a laundry. They sold the laundry to Brunner, who assumed and agreed to pay the chattel mortgage debt. Afterwards Brunner gave possession to the plaintiff, who sold and bid in the property. There was evidence that 5. APPEAL AND ERROR 1005 the property was more than sufficient to pay FINDING-CONFLICTING EVIDENCE. the plaintiff's lien. Only a small sum was A special finding, although against much of credited on the note as the net proceeds of the evidence, if supported by some competent the sale. The plaintiff then sued the makers evidence, not attempted to be set aside by motion of the complaining party, and approved by the of the note. Their answer contained two trial court on overruling a motion for new trial defenses upon which evidence was intro-involving such finding, will not be disturbed by duced, but which the court ignored when directing a verdict. One defense was that the plaintiff agreed with Brunner to take the property covered by the chattel mortgage in full satisfaction of the debt. The other defense was that the sale was so conducted as to amount to a conversion of the property so that the plaintiff should be charged with its full value. Both defenses were clearly available to the defendants, there was evidence to sustain each one, the court erred in not submitting them to the jury, and the new trial was properly awarded. The judgment of the district court is affirmed. All the Justices concurring. (97 Kan. 46) CHRISTIAN v. UNION TRACTION CO.* (No. 19796.) (Supreme Court of Kansas. Jan. 8, 1916.) WEST, J. This is an appeal from a judģment for damages recovered by the plaintiff for injuries sustained by being thrown from one of the defendant's street cars. It was alleged that the car gradually came to a stop at or near the west curb line of Eleventh street, and that as the plaintiff attempted to descend the steps when the car had become stationary the car, without warning, suddenly started, throwing her to the pavement Rules followed that a verdict supported and and injuring her. It was contended by the approved must stand, and that, when the evi- defendant that the plaintiff negligently at (Syllabus by the Court.) 1. APPEAL AND ERROR 1003-TRIAL For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Rehearing denied February 18, 1916. |