on account of error in sustaining a motion for a new trial. The cases cited by counsel are not, we think, controlling. In the case of Lindh v. Crowley, 29 Kan. 756, the record stated specifically the one ground upon which the motion was allowed and the reasons of the court for its decision. In the case of Railroad Co. v. Brown, 51 Kan. 6, 32 Pac. 630, the railroad filed a motion for a new trial, and subsequently, and before the court had acted upon it, asked leave to withdraw the motion, and expressly waived all error which might have accrued upon the trial, and yet the court granted a new trial. This was held to be erroneous. In the case of Railroad Co. v. Werner, 70 Kan. 190, 78 Pac. 410, a new trial was granted for a ruling of the court upon the trial to which there was no objection or exception. This was held error. In the case of Sovereign Camp v. Thiebaud, 65 Kan. 332, 69 Pac. 348, the record disclosed that a new trial was granted upon one distinct ground, which from the record appeared to be clearly erroneous. These cases are not parallel, or even analogous, to the one at bar, where it cannot be ascertained upon which of several grounds the court acted. The rule applicable here was fully stated in the case of the city of Sedan v. Susan B. Church, 29 Kan. 190, and reads: "Trial courts are invested with a very large and extended discretion in the granting of new trials; and new trials ought to be granted whenever, in the opinion of the trial court, the party asking for the new trial has not in all probability had a reasonably fair trial, and has not in all probability obtained or received substantial justice, although it might be difficult for the trial court or the parties to state the grounds for such new trial upon paper so plainly that the Supreme Court could understand them as well as the trial court and the parties themselves understood them." Syllabus. "The Supreme Court will not reverse the order of the trial court granting a new trial, unless the Supreme Court can see, beyond all reasonable doubt, that the trial court has manifestly and materially erred with respect to some pure, simple, and unmixed question of law, and that except for such error the ruling of the trial court would not have been made as it was made, and that it ought not to have been so made." Syllabus. This rule has been followed in this court until it may be regarded as the settled law. Murphy v. Hindman, 37 Kan. 267, 15 Pac. 182; Sanders v. Wakefield, 41 Kan. 11, 20 Pac. 518; Railroad Co. v. Ryan, 49 Kan. 1, 30 Pac. 108; Investment Co. v. Hillyer, 50 Kan. 446, 31 Pac. 1064; Ireton v. Ireton, 62 Kan. 358, 63 Pac. 429; Glover v. Ratcliff, 69 Kan. 428, 77 Pac. 89; McCauley v. Railroad Co., 70 Kan. 895, 79 Pac. 671; Scott v. Stone, 72 Kan. 545, 84 Pac. 117; Railroad Co. v. Fields, 73 Kan. 375, 85 Pac. 412. The jury made no special findings of fact, and, the court having given no reasons for its decision, we are unable to say what specific grounds of the motion were sustained, nor has it been clearly made to appear that none of the grounds were sufficient to justify the court in its ruling. The judgment is affirmed. All the Justices concurring. PLOWMAN et al. v. NICHOLSON et al. (Supreme Court of Kansas. July 3, 1909.) WITNESSES (§ 178*) - COMPETENCY-TRANSAC TIONS WITH DECEDENTS. The issue being whether a deed from a parstatement, made by the grantee as a witness, ent to a child was made as an advancement, a that no consideration was paid for it, is testimony relating to the transaction between him and the grantor, and, if brought out by the queshim to narrate all the attendant circumstances, tions of his opponent in the litigation, qualifies notwithstanding he would otherwise be rendered incompetent to do so by the statute regarding evidence concerning personal transactions with persons since deceased. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. § 722; Dec. Dig. § 178.*] (Syllabus by the Court.) Error from District Court, Shawnee County; A. W. Dana, Judge. Action by Sarah Plowman and others. against Laura V. Nicholson and others. Judgment for plaintiffs and defendants bring error. Affirmed. Frank Doster and Ed. D. McKeever, for plaintiffs in error. W. R. Hazen, F. P. Lindsay, Troutman & Stone, and J. B. Larimer, for defendants in error. MASON, J. Elijah Hughes, some 40 years. before his death, conveyed all of his property to his wife, Rebecca G. Hughes, and thereafter, although engaged actively in business, he conducted it all in her name. The couple had eight children, to each of whom, excepting two (George T. and Charles F.), they from time to time executed deeds to various tracts of real estate the title to which was held by the wife or, what amounted to the same thing, in some instances land was purchased, paid for by checks drawn by the husband as agent, and conveyed directly to one of the children. Mrs. Hughes died in-· testate shortly after her husband, and an action was brought for the partition of the real property owned by her at the time of her death. George T. and Charles F. Hughes claimed that the deeds to the other children had been made as advancements, but the other heirs, with two exceptions, denied this, and the court found against the contention. On review the principal question presented is whether there was any competent evidence to support that finding. Several of sented." the grantees were permitted to testify that the matters which he had partially preat the time of the delivery of the deeds Elijah Hughes and his wife made statements tending to show that in each instance a preferential gift, and not an advancement, was intended, and the inquiry is therefore narrowed down to the question whether this testimony should have been admitted. Two objections are made to it: (1) That Elijah Hughes was not shown to be the agent of his wife so far as to make his statements evidence of her intentions; and (2) that the witnesses were incompetent under the statute forbidding a party to testify in his own behalf in respect to any transaction had personally by him with a person since deceased, as whose heir the adverse party claims. Gen. St. 1901, § 4770. Probably, in view of all the circumstances shown by the evidence, it might fairly be inferred that the property held in the name of Mrs. Hughes really belonged to her husband, or that they owned it in common. But, disregarding this feature of the matter, there was sufficient evidence of her acquiescence in his conduct of the business relating to the transfer of the property, and indeed of her intrusting its management to him, to justify an inference that whatever he did was done by her authority. That the question asked by the adverse parties was framed to develop merely the negative fact that the deeds were not executed for a valuable consideration does not affect the matter. That nothing was paid for the conveyances tended to fix the character of the transactions of which their delivery formed a part. The proponents of the question which elicited proof of that circumstance cannot complain that the same witness was permitted to testify to anything said or done in connection with such transactions that might throw light upon their real nature. A quite similar situation was presented in Nay v. Curley, 113 N. Y. 575, 21 N. E. 698. There administrators sued to recover the amount of a loan they claimed their intestate had made to the defendant. They showed that the decedent had drawn a check to the defendant, who had received the money on it. To rebut the presumption that the check was given to pay a debt they then called the defendant to the stand, and asked him whether when it was drawn the decedent owed him anything, receiving a negative answer. The defendant then offered himself as a witness in his own behalf, and was asked by his counsel to state what had taken place between him and the decedent. The question was excluded as obnoxious to the statute, and this ruling on review was held to be erroneous, the court using this language, much of which is pertinent to the facts of this case: "The correctness of the ruling excluding the defendant from testifying in his own behalf as to what took place between the intestate and himself at the time the check was given turns upon the point whether the plaintiffs, by asking the defendant on their examination whether, on the day the check was given, their intestate owed him anything, and obtaining an answer in the negative, thereby gave proof as to the transaction between the parties at the time of giving the check, and opened the way to the defendant to testify thereto. * The grantees in the deeds were manifestly incompetent to testify concerning any communication made to them personally by the grantors, unless their disqualification under the statute was in some way removed. They were in the first instance called to the stand by the adverse parties, and asked what, if anything, they paid for the deeds. They answered that they paid nothing. We think the trial court correctly held that by this course their opponents waived the objection to the testimony complained of, under the rule announced in Niccolls v. Esterly, 16 Kan. 32, where of a somewhat similar situation it was said: "Now the testimony of the plaintiff in his own behalf was in reference to the same transactions of which he had testified at the instance of the defendant. And while, if the defendant had so The cause of action, if, any, arose chosen, none of his testimony could have out of the giving of the check, and whether been admitted, yet, having interrogated the it created a cause of action depended upon plaintiff concerning these matters, and hav- the real nature of that transaction-whething obtained some of the facts concerning er the check represented a loan, gift, or them, he could not thereafter object to the something else. The check on its face implaintiff's giving all the facts. By introduc- ported a personal transaction between the ing part he opens the door to all. Just as parties to the instrument. * * * The maa party may not introduce his own statement terial issue was, What was the real character in his own behalf, yet, if his adversary of that transaction? The plaintiffs, by calldraws out part of a conversation, he may ing the defendant, and proving by him that introduce the balance. The principle is gen- the intestate owed him nothing when the eral that, where a particular witness, or a check was given, showed that the transaction certain kind of testimony, may be excluded, was not a payment, and by eliminating this if the party who had the right to insist up- element characterized the transaction as a on the exclusion waives that right, and him- loan. If the question put to the defendant self calls the witness or introduces the testi- by the plaintiffs had been in a direct formmony, he cannot, after he has obtained what as, for instance, 'Was the check given for he desires, insist upon the exclusion, so far a debt?'-no doubt could be entertained that transaction between the parties when the | tion, defendants appeal. Reversed, with dicheck was given; and, if answered in the rections. D. A. Banta, for appellants. negative, the door would have been opened to the defendant to show what the transaction was, and that it was not a loan, which PER CURIAM. Several stockholders of a would be the presumption in the absence Kansas corporation which was organized in of further explanation. The mere form of 1905 guaranteed its notes, and, on its default, the question can make no difference if the were compelled to pay them. The corporaquestion put, in substance, called for an af- tion being insolvent, its affairs were wound firmation or negation as to the character of up by a receiver. Some of the stockholders, the transaction in question. ** They including the guarantors of the notes, voluncould not call the defendant, and show by tarily contributed an amount equal to their him that there was no debt, and consequent- stock to increase the fund from which the ly that the transaction was not the payment corporate debts were to be paid. The assets of a debt, and preclude him from testifying of the corporation, with this increase, being as to what the transaction was, or that it insufficient to meet its obligations, the guarwas not that which the evidence given by antors brought action against the stockholdhim on their examination presumptively es-ers who had refused to make any such contablished it to have been. *** The ex- tributions, seeking to recover from each a amination of the defendant by the plaintiffs sum equal to the amount of his stock (which as to the existence of a debt between the wit- was fully paid up) so far as might be necesness and the intestate when the check was sary for their own reimbursement. The trial given directly bore upon the nature and court overruled a demurrer to a petition statcharacter of the transaction, and was an in- ing these facts, and the defendant appeals. direct method of proving the transaction itself. They, therefore, made the defendant a competent witness to testify in his own behalf as to the same transaction." It is not necessary to consider the competency of all the evidence that tended to show a purpose to discriminate against the children to whom no property was conveyed, since we decide that a part of it was properly admitted. The present Constitution limits the Hability of stockholders for the debts of a corporation to the amount of their stock. Laws 1905, p. 906, c. 542. In 1905, when the corporation in question was created, the former constitutional provision (original section 2, art. 12) relating to an additional liability was still in force, but was not self-operating, and required an act of the Legislature to give it effect. Woodworth v. Bowles, 61 Kan. 569, 60 Pac. 331. All the statutes on the subject had been repealed. Laws 1903, p. 284, c. 152. In the absence of any legislation, the stockholder's responsibility to the creditors of the corporation ended when his stock had been fully paid up. 10 Cyc. 649. The petition therefore stated no cause of action. Two of the parties, by a cross-petition in error, ask a reversal of another feature of the judgment, based on a finding that a conveyance to them was made in trust. To preserve for review the question involved it was necessary that they should have presented it to the district court by a motion for a new trial. Only one motion of that The judgment is reversed, with directions character was filed, and it was made only to sustain the demurrer. by the plaintiffs in error already named. Under these circumstances we cannot examine the ruling complained of by the crosspetitioners. Ex parte HANSON. The judgment is affirmed. All the Justices (Supreme Court of Kansas. Oct. 9, 1909. Reconcurring. In the absence of legislation on the subject, the liability of a stockholder to the creditors of a corporation ends when his stock has been fully paid up. [Ed. Note. For other cases, see Corporations, Dec. Dig. § 225.*] Appeal from District Court, Barton County; J. W. Brinckerhoff, Judge. Action by George Bicknell and against J. E. Altman and others. others From a hearing Denied Nov. 20, 1909.) 1. CONTEMPT (§ 34*)-POWER TO PUNISHPROBATE COURTS. Every probate court in this state is a court of record, and has inherent power to punish summarily for contempt persons who in open court refuse to comply with its lawful orders, or in any manner impede or embarrass the orderly transaction of its business; and this power exists independent of any statute. [Ed. Note.-For other cases, see Contempt, Cent. Dig. § 104; Dec. Dig. § 34.*1 2. WITNESSES (§ 21*)-REFUSAL TO TESTIFYCONTEMPT. A person who is present in open court in the capacity of a witness and refuses, when ordered by the court, to answer a pertinent question concerning the matter being investigated is guilty of contempt, for which he may be summarily fined. [Ed. Note.-For other cases, see Witnesses, judgment overruling a demurrer to the peti- Cent. Dig. § 39; Dec. Dig. § 21.*] B. WITNESSES (§ 21*) - CONTEMPT - PUNISHMENT-FINE-ENFORCEMENT. Where a witness is guilty of contempt, and is fined under circumstances as above indicated, and refuses to pay the fine as ordered, he may be committed to jail, there to remain until such fine is paid and the question answered. [Ed. Note. For other cases, see Witnesses, Cent. Dig. § 39; Dec. Dig. § 21.*] (Syllabus by the Court.) Original proceeding for writ of habeas corpus by John F. Hanson against the sheriff of McPherson county. Petition dismissed. John F. Hanson, for petitioner. Frank O. Johnson, for respondent. GRAVES, J. This is an original proceeding in this court for a writ of habeas corpus, prosecuted by John F. Hanson, who is confined in the jail of McPherson county upon a commitment issued by the probate court of that county for contempt. It appears that the petitioner was present in the probate court, where a trial was in progress between an administrator of an unsettled estate and persons holding claims against the estate which the administrator was contesting. The petitioner, who is an attorney, had been the adviser of the administrator of the estate, and had books and papers in his possession deemed to be important as evidence in the controversy before the court. In the course of the trial he was called as a witness, and, after being duly affirmed, was asked if he had any books or papers pertaining to said estate in his possession, to which the witness refused to answer. The court then adjudged him guilty of contempt, and assessed a fine against him of $25, and ordered it to be paid at once, which the petitioner refused to do. The court then committed him to the custody of the sheriff until such fine was paid and the answer made to the question propounded. The witness still refuses to answer the question or pay the fine. It tion and care of estates of deceased persons, minors, and persons of unsound minds, as may be prescribed by law. will be seen from this that a probate court in this state is a court of record, and has jurisdiction of the estates of deceased persons. In the case of Howbert v. Heyle, 47 Kan. 58, 27 Pac. 116, this court said: "It must be remembered that the probate court. in this state is a court of record (Const. art. 3, § 8; Act Relating to Probate Courts, § 1 [Gen. St. 1901, § 1974]); and, while it has jurisdiction only of particular classes of things, such as the care of the estates of deceased persons, minors, and persons of unsound mind, yet it has general jurisdiction of these things." This was repeated in the case of Higgins v. Reed, 48 Kan. 280, 29 Pac. 389. In 9 Cyc. p. 26, it is said: "Independent of authority granted by statute, courts of record of superior jurisdiction, whether civil or criminal, possess inherent power to punish for contempt of court. Such power is essential to the due administration of justice, and the Legislature cannot take it away or abridge it, although it may regulate its use. Statutes conferring the power are simply declaratory of the common law." In 7 Am. & Eng. Ency. of Law (2d Ed.) it is said: "When, however, the court is a creature of the Constitution, the better opinion seems to be that it cannot, by legislative enactment, be shorn of its inherent right to punish for contempts; nor can the Legislature abridge that right, although it may regulate its exercise. The Constitution may confer on the Legislature the power to abridge the right of courts created by the Constitution to punish for contempts, but in only a very few states of the Union has that been done." In the case of In re Millington, 24 Kan. 214, this court said: "Courts of record have an inherent power to punish, for disorderly conduct in the courtroom, resistance of their process, or any other interference with their proceedings which amounts to actual contempt." State v. Thomas, 74 Kan. 360, 86 Pac. 499. In the case of State v. Judge, etc., 45 La. Ann. 1250, 14 South. 310, 40 Am. St. Rep. 282, it is said: "The power to punish for contempts, actual or constructive, is inherent in all courts of record, and is essential to the preservation of order in all judicial proceedings." In the case of In re Shortridge, 99 Cal. 526, 34 Pac. 227, 21 L. R. A. 755, 37 Am. St. Rep. 78, the court, in the opinion, said: "No authority has been found which denies the inherent right of a court, in the absence of a limitation placed upon it by the power which created it, to punish as a contempt an actwhether committed in or out of its presence The petitioner's claim for relief is based entirely upon the theory that the power of the court to punish for contempt is given by the statute, and that such power is exclusive. He further contends that the statute does not authorize commitment for nonpayment of a fine assessed for contempt. The brief is devoted to a discussion of the statute relating to contempts, and it is contended that the action of the probate court was not within such statute. In the view we have taken much of this discussion is immaterial, as we do not concur in the assumption that a probate court is without power to punish for contempt except as conferred by the statute. The probate court in this state is created, and its jurisdiction fixed, by section 8, art. 3, of the Constitution, which tends to impede, embarrass, or obwhich reads: "There shall be a probate struct the court in the discharge of its ducourt in each county, which shall be a court ties. It is a doctrine which is admitted in of record, and have such probate jurisdic- all its rigor by American courts everywhere, If Members of the bar are not expected to embarrass courts, but rather to aid them in the discharge of their difficult duties. an attorney, in his zeal for a client, or in the excitement of the occasion, should overstep professional propriety or violate his duty as a witness in open court, he should retrace the steps so taken at the earliest opportunity. and does not need the support of foreign au- | he should have voluntarily produced it. thorities, based upon the fiction that the majesty of the king, represented in the persons of the judges, is always present in the court. It is founded upon the principlewhich is coeval with the existence of the courts, and as necessary as the right of selfprotection-that it is a necessary incident to the execution of the powers conferred upon the court, and is necessary to maintain its dignity, if not its very existence. It exists independent of the statute." The case of Hale v. State decided by the Supreme Court of Ohio, and reported in 55 Ohio St. 210, 45 N. E. 199, 36 L. R. A. 254, 60 Am. St. Rep. 691, is a leading case upon this subject. In that case the court decided: "The General Assembly is without authority to abridge the power of a court created by the Constitution to punish contempts summarily, such power being inherent, and necessary to the exercise of judicial functions; and sections 6906, 6907, Rev. St. 1890, will not be so construed as to impute to the General Assembly an intention to abridge such power." In the opinion it is said: "In the case before us a court created by the Constitution punished summarily as for a contempt one guilty of a wrongful act which interfered with the exercise of its jurisdiction. Upon a careful examination of the reported cases we find but one which seems to deny its power to do so." This case in 36 L. R. A. 254, has exhaustive notes appended, containing the citations of many authorities additional to those cited in the opinion. It may be safely assumed that these cases indicate a general concurrence of courts in the proposition that every court created by the Constitution, which is not limited by that instrument in this respect, possesses inherently full power to enforce its orders, protect its dignity, preserve good order, and to that end may administer punishment for contempt; and this power exists independently of any statute. As probate courts are created in this state by the Constitution, they fall within the foregoing category. We are unable to grant the relief prayed for. The petitioner is remanded to the sheriff, in whose custody he was when this proceeding was commenced, and the costs of this application are taxed to the petitioner. All the Justices concurring. KIBBY v. HENSEL. (Supreme Court of Kansas. Dec. 11, 1909.) QUIETING TITLE (§ 42*)-AMENDMENT OF AN SWER. K. sued H. and several others to quiet title east quarter and the northwest quarter of a to several tracts of land, including the northcertain section. A judgment was rendered for the plaintiff on service by publication. motion of H. alone the judgment was opened as northeast quarter. After the expiration of the to him; his answer claiming title only to this three-year period for opening such judgments, H. was allowed to amend his answer by substituting "northwest" for "northeast," to correct a misdescription of the land claimed. As H. had been sued in respect to his claim to the northwest quarter, and he had no title to the northeast quarter, the amendment preserved the subject of the action between the parties affectidentity of H.'s defense and counterclaim to the ed, and was properly allowed. [Ed. Note. For other cases, see Quieting Title, Cent. Dig. § 83; Dec. Dig. § 42.*] (Syllabus by the Court.) Error from District Court, Seward County; William H. Thompson, Judge. Action by John W. Kibby against John F. Hensel and others. Judgment for plaintiff, and defendant Hensel thereafter moved to set aside the judgment. Motion granted, and judgment for defendant Hensel. Plaintiff brings error. Affirmed. V. H. Grinstead, for plaintiff in error. B. F. Milton, Kos Harris, and V. Harris, for defendant in error. The petitioner attacks the whole proceeding as void because not in accordance with sections 330, 331, and 332 of the Code of Civil Procedure (Gen. St. 1901, §§ 4778, 4779, 4780). If these sections were intended to apply to courts of record, they are not controlling. The court, independent of this statute, had full power to make the orders of which complaint is made. If courts were limited in their power to enforce proper orders as urged here, contumacious witnesses could effectually impede and embarrass them to such an extent as practically to prevent the administration of justice. The petitioner was in the wrong. He should have answered the question, and if the evidence desired was in his possession, and material, BENSON, J. A judgment was rendered on service by publication against John F. Hensel and others, quieting title to the northwest quarter and the northeast quarter of a certain section and other lands. Within the time allowed by the statute Hensel filed his motion to open the judgment, and asked for leave to defend under section 77 of the Civil Code (Gen. St. 1901, § 4511). Notice was given and an answer filed. This motion was sustained, and an order was made that the judgment "be set aside and opened up as to the defendant, John F. Hensel." The answer |