"The opening, holding, and adjournment of court are the exercise of judicial power, to be tions of a court, the presence of the officers performed by the court. To perform the func constituting the court is necessary, and they must be present at the time and place appointed by law." 52 Kan. 31, 34 Pac. 458, 39 Am. St. Rep. 327. See, also, State ex rel. Barber v. McBain, 102 Wis. 431, 78 N. W. 602. the judge was not in the courtroom at the It was conceded in the oral argument that time court was adjourned, and some doubt was expressed as to whether he was even in the county. I think we should adhere to the old rule that the personal presence of the judge is requisite to a valid adjournment of court, except under the circumstances expressly covered by the statute. JOHNSTON, C. J., and MARSHALL, J., join in this dissent. CUSICK v. MILLER. (Supreme Court of Kansas. (102 Kan. 663) (No. 21389.) March 9, 1918.) (Syllabus by the Court.) instance) to-morrow morning," and the record in such case might show that the direction was obeyed. Colloquially the bailiff is spoken of in such a case as adjourning the court, but all understand that what is really done is that the court, acting through the judge, decides and orders, and therefore makes, the adjournment, and the bailiff merely gives publicity to the fiat. The recital of the record above quoted that the sheriff and clerk were present may imply that the judge was not in the courtroom when the proclamation was made; but it does not necessarily indicate that he had not been in the courtroom when the direction was given, and it does not even suggest that he was not then in the courthouse-much less that he was absent from the county. It is not essential that the judge shall be personally in the courtroom when an order is made. This court makes many orders outside of the courtroom, which are communicated to the clerk by telephone and by him entered upon the record. In a recent murder case the larger part of the trial was had outside of the courtroom. State v. Sweet, 101 Kan. 746, 168 Pac. 1112. The recital of the record that all the cases of the term had been called to the judicial notice of the judge seems substantially equivalent to a statement that the business of the term was ended-the rec-which he desires and attempts to cross is not ord of a finding to that effect, which is to be attributed to the judge, rather than to an executive or ministerial officer. This court interprets the entry as meaning that the judge properly ordered the adjournment and the sheriff announced it-an interpretation which finds added support in the fact that the record has been permitted to remain unchanged. If it related to the unauthorized act of the sheriff the presumption would seem to be that it would have been expunged. The court sees no conflict between this decision and that rendered in In re Terrill, 52 Kan. 29, 34 Pac. 457, 39 Am. St. Rep. 327. What was decided there was that the clerk cannot (without statutory authority) adjourn the court. When the order there involved was attempted to be made the judge seems not to have arrived in the county; there was nothing in the record to suggest that the clerk acted otherwise than upon his own motion, and no suggestion to that effect appears to have been made. It follows that our former judgment of affirmance should be set aside, and the judgment of the district court will now be reversed, with instructions to set aside its order reinstating the cause, and with further instructions that the cause be dismissed. 1. MUNICIPAL CORPORATIONS 705(10) CROSSING STREET - CONTRIBUTORY NEGLIGENCE. A pedestrian arriving at a street intersection necessarily guilty of contributory negligence be- 2. APPEAL AND Error 1048(6)—EVIDENCE NATION. Various assignments of error relating to evidence, instructions, special findings, and the general verdict, considered, and held, none of them is sufficient to warrant a reversal. Appeal from District Court, Cowley County. Action by Fannie Cusick against W. F. Miller. Judgment for plaintiff, and defendant appeals. Affirmed. J. E. Torrance and S. C. Bloss, both of Winfield, for appellant. Jackson & Noble, of Winfield, for appellee. BURCH, J. The action was one for damages for personal injuries inflicted by the defendant, who drove his automobile over the plaintiff at a street crossing. The verdict and judgment were for the plaintiff, and the defendant appeals. Seventh street in the city of Winfield ́extends east and west. It is crossed by Andrews street, which extends north and south. The plaintiff desired to go from the northeast corner to the southwest corner of the inBURCH, MASON, PORTER, and WEST, tersection. She intended to take a diagonal JJ., concur. course, but discovered a team and wagon, followed by an automobile, entering the interDAWSON, J. (dissenting). In the case of section from the west. She took a course In re Terrili, supra, it was said: more toward the west than toward the south. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes placed on record were deeds of other land, made long before the accident. No attempt was made to prove the defendant's wealth. The evidence which the plaintiff expected to obtain would have been proper, the method of examination to obtain it was proper, and the plaintiff simply failed to prove what she desired to prove. As the team and wagon came forward the, accident. He answered that he still owned automobile passed north of them and south it, and explained that the deeds which were of the plaintiff, who was only two or three feet within the north portion of the intersection. Just at this time the defendant approached from the east. Driving his automobile at a speed of 12 miles per hour, the defendant, without warning and without slackening speed, undertook to dart between the wagon and the plaintiff. He knocked the plaintiff down, ran over her, and seriously injured her. The plaintiff was in plain view, and the defendant could have stopped his au-pastor of a church, which it is argued tendtomobile within the space of two or three feet. With the verdict the jury returned special findings of fact, which follow: "(1) If plaintiff on approaching Seventh avenue had looked to the east, could she have seen the defendant's car approaching? A. Yes. "(2) What, if anything, was there to prevent 'plaintiff from passing straight across Seventh avenue from north to south on a line with the sidewalk? A. Wagon and automobile. "(3) As defendant, Miller, approached the in tersection of Andrews street with Seventh street, were there other vehicles in or near the crossing which partly attracted his attention and made it necessary for him to look out for them? A. Yes. "(4) After defendant saw plaintiff in the street and in a dangerous position, did he use his best judgment and efforts in trying to avoid the accident? A. No. "(5) After having entered upon the street or intersection of Seventh avenue and Andrews, in what direction or directions did she move before she was struck by defendant's car? A. South and west. "(6) After the plaintiff stepped upon Seventh avenue or the intersection of Seventh avenue and Andrews and before the accident, was she delayed or her direct course obstructed by reason of the automobile and the team and wagon on the intersection? A. Yes. "(7) Did the plaintiff just before going south in her effort to cross Seventh avenue look east to see if other vehicles or automobiles were coming from that direction? A. No. "(8) Was the plaintiff guilty of negligence which proximately contributed to her injury? A. No. "(9) If you find the defendant was negligent and that such negligence caused the injury complained of, state what particular act or acts, omission or omissions, on the part of the defendant, caused the injuries. A. Failed to sound horn, failed to put on emergency brake, and driving too fast. "(10) After the defendant discovered the position of the plaintiff in the street, did he use all reasonable means within his power under the circumstances to avoid the accident? A. No." [1, 2] The defendant complains of the introduction of certain evidence. It is said the plaintiff was allowed to prove the defendant's wealth. What occurred was this: Shortly after the accident, deeds of real estate from the defendant to his children were placed on record. The plaintiff desired to show the transfers as tending to establish consciousness of liability and a purpose to evade satisfaction of such liability. The defendant was asked a preliminary question, what property he owned at the time of the accident. He answered that he owned 640 acres of land. He was then asked The defendant complains of the introduction in evidence of a letter to him from the ed to create sympathy for the plaintiff and resentment toward the defendant. On crossexamination of the defendant the following occurred: "Q. How many times were you up to see Miss Cusick? A. I never went to see Miss Cusick. "Q. You received a letter from Rev. Gentry? A. I did. "Q. Never answered that letter? A. No, sir; thought he was a meddler and didn't pay any attention. "Q. I say, you never answered that letter? A. No, sir." At this point counsel for the defendant objected, no ground of objection being stated, and the cross-examination closed. The subject of the cross-examination was outside the scope of the direct examination, was wholly immaterial, and the plaintiff was bound by the answers returned. The defendant, however, reopened the subject by testifying to facts justifying him in not visiting the plaintiff, because of apprehension of bodily harm. The letter, which was a friendly one, was then admitted, and the defendant was asked if he was afraid of the preacher. The court instructed the jury that the letter could be considered only as bearing on the question whether or not the defendant was afraid to visit the plaintiff. The issue of fear was raised by the defendant. He might have had the cross-examination stricken out, if he had so desired. Instead of this, he chose to enlarge upon it, and must abide the result. Complaint is made that an instruction which was requested was not given, and of instructions which were given. The requested instruction authorized the jury to infer contributory negligence from the plaintiff's knowledge of traffic conditions usual to the place, not conditions as they actually existed, and from her failure to look toward the east. It ran counter to instructions which were given, over objection, and which will now be considered. The court instructed the jury on the subject of contributory negligence in terms of reasonable and ordinary care, to be determined from all the facts and circumstances. The jury were further instructed that a pedestrain about to cross a city street is not necessarily negligent in not looking and listening for approaching automobiles. The instruction was correct. It is not the law of this state that mere presence of a city street crossing cries few incorrigible automobile drivers may in It is said with reference to the tenth finding fact make the public thoroughfares. Wil- that there is no evidence the accident would liams v. Benson, 87 Kan. 421, 423, 124 Pac.have been prevented had the defendant done 531; Ratcliffe v. Speith, 95 Kan. 823, 828, 149 any of the things he omitted to do. The eviPac. 740. In this connection it may be ob-dence was that when the defendant discoverserved the defendant is quite inconsistent. ed the plaintiff he was far enough from her He asks to be acquitted of negligence in not to have stopped his automobile before strikseeing the plaintiff, who was directly in fronting her, and the inference is this could have of him, because his attention was taken by the team and wagon and the automobile following them. He charges the plaintiff, whose attention was taken by the same objects, with negligence because she did not look backward and discover his approach. Violation of the statute limiting the speed of automobiles on city streets and at street intersections was pleaded and proved. The court stated the terms of the statute in an instruction to the jury. It is said the court should have qualified the instruction by stating that violation of the statute must be the direct and proximate cause of injury, to authorize recovery on that ground. The qualification was contained in another instruction covering all acts of negligence charged. Certain portions of the instructions were devoted to the doctrine of last clear chance. They need not be discussed because the jury eliminated the subject of last clear chance from the controversy by finding the plaintiff was not negligent at all. It is contended the finding was induced by erroneous impressions derived from instructions. The court perceives no sound basis for the contention. In one instruction it was said the burden of proof respecting contributory negligence rested on the defendant, without referring to the fact that the plaintiff's evidence might be looked to. The instruction is to be read with another which discussed contributory negligence and directed the jury to consider all the evidence bearing on the subject. Complaint is made of some of the findings of fact. It is said the fourth finding is not sustained by the evidence. Leaving out of consideration the defendant's explanation of his conduct, which the jury may not have believed, the finding is sustained by the evidence. If, however, an affirmative answer based on the testimony most favorable to the defendant were given to the interrogatory, the verdict would not be affected. It is said the eighth finding is inconsistent with the sixth and seventh findings. The proposition is not argued, and is not capable of demonstration. been done by using the emergency brake. If Some of the objections to the evidence, to the instructions, to the findings, and to the verdict, have not been discussed. They have, however, been considered, and none of them is deemed sufficient to warrant a reversal. The judgment of the district court is affirmed. All the Justices concurring. (102 Kan. 661) WAYMAN v. SOLLER et al. (No. 21384.) (Supreme Court of Kansas. March 9, 1918.) (Syllabus by the Court.) COURTS_222(5)—SUPREME COURT APPELLATE JURISDICTION. in which a party is resisting the recovery of any In an action for the recovery of money only, amount and a judgment is rendered for $62, from which such party attempts to take an appeal, the amount in controversy as to such parit being less than $100, no appeal lies to the ty is fixed by the amount of the judgment; and, Supreme Court. Appeal from District Court, Washington County. Claim of T. C. Dodd against the estate of O. H. P. Steele and Caroline Steele, deceased. From an order allowing the claim, Vashti C. Wayman filed notice of appeal to the district court, and from an order sustaining claimant's motion to dismiss the appeal, said Wayman appeals. Appeal dismissed. Edgar Bennett, of Washington, Kan., for appellant. J. R. Hyland, of Washington, Kan., for appellee. JOHNSTON, C. J. T. C. Dodd filed a claim against the estate of O. H. P. Steele and Caroline Steele, deceased, in the sum of $103.03. It was duly exhibited to the administrator of the estate, August Soller, and on April 29, 1916, the probate court allowed It is said the jury were not really instruct- the claim to the extent of $62, and assigned ed with reference to the plaintiff's negli-it to the fifth class. On May 3, 1916, Vashti gence. The record does not support the statement. It is said there was no evidence that any of the specifications of negligence contained in the ninth finding contributed to the plaintiff's injury. The court finds no difficulty in relating the injury to the causes stated. C. Wayman, daughter and heir at law of Caroline Steele, filed notice of appeal to the district court from the order of the probate court, but she did not file her appeal bond until June 10, 1916. After the case was taken to the district court Dodd filed a motion to dismiss the appeal for the reasons: (1) For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes That the heir is not the proper party to take an appeal from the probate court; and (2) that the appeal bond was not filed and approved within 30 days from the date of the judgment. The district court sustained the motion, from which order this appeal is taken. The heir plausibly contends somewhat in line with the rule in Sarbach v. Deposit Co., 99 Kan. 29, 160 Pac. 990, L. R. A. 1917B, 1043, that she is an interested party, and is therefore entitled to an appeal from the allowance of a claim that will reduce the residue of the estate of which she was entitled to a part. Granting, however, that an heir is entitled to an appeal, under the statute the steps to an effective appeal are to be taken within 30 days, which was not done in this instance. The defendants insist that the giving of bond is a prerequisite to the granting of an appeal, one equally as essential as notice and affidavit which have been held to be indispensable, and they have cited authorities to sustain their contention which are very persuasive. Spangler, Adm'r, v. Robinson, 20 Kan. 682; McClun v. Glasgow, 55 Kan. 182, 40 Pac. 329; McIntosh V. Wheeler, 58 Kan. 324, 49 Pac. 77; Pee v. Witt, 100 Kan. 171, 163 Pac. 797. The general finding of the court that the defendant had failed to sustain her claim of title by adverse possession is held to be sustained by the evidence. Appeal from District Court, Lane County. Ejectment by G. L. Finn against Nannie Alexander and John Collison. Judgment for plaintiff, and defendants appeal. Affirmed. Dwight M. Smith, of Kansas City, Mo., Ed. R. Bane, of Scott City, and Stone & McDermott, of Topeka, for appellants. John S. Simmons and K. K. Simmons, both of Hutch inson, for appellee. JOHNSTON, C. J. This was an action of ejectment by G. L. Finn against Nannie Alexander and another. It was conceded that the plaintiff, a resident of California, held the record title to the land, having acquired his deed thereto in 1901; but the defendant Nannie Alexander claims title by adverse possession for more than 15 years in herself and her grantor, S. L. Filson. The defendant claims that Filson received a deed to the land about 1890, which he neglected to put on record and later lost; that he immediately went into possession of the land, cultivat Although the questions raised for and against the right of appeal are simple and the answers to them are obvious, it is equal ly obvious that, as there is less than $100 involved, this court is without jurisdiction to consider or determine them. The claimant asked the probate court for an allowance of $103.03. That court allowed $62 of the claim. The disallowance of $41.03 was to that extent a decision in favor of the heir, if she be an interested party, and also in favor of the administrator, who is not attempting and fencing a portion of it and inclosing ing to appeal. As to either of them $62 is the amount in controversy, and, as nothing else is involved than the recovery of money, the case is not appealable. Civ. Code, § 566 (Gen. St. 1915, § 7470); Richmond v. Brummie, 52 Kan. 247, 34 Pac. 783; Nuhfer v. Flanagan, 87 Kan. 420, 124 Pac. 418; Wilson v. Fisher, 92 Kan. 786, 142 Pac. 241. The appeal is therefore dismissed. All the Justices concurring. (102 Kan. 607) FINN v. ALEXANDER et al. (No. 21361.) (Supreme Court of Kansas. March 9, 1918.) (Syllabus by the Court.) 1. ADVERSE POSSESSION 13-REQUISITES. Title to the land of another cannot be acquired by adverse possession, unless the possession is open, notorious, hostile, and exclusive-a possession of such a nature and notoriety that the owner may be presumed to know that the occupant is claiming a title inconsistent with his own. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Adverse Possession.] the balance of it as a part of his pasture land; that he raised crops upon it every year and continued in open possession until he conveyed it to her in 1907; and that during this timè no one questioned his right. The evidence on behalf of plaintiff tended to show that it was the custom of cattlemen to use pasture lands of nonresidents; that Filson used the land in question with Finn's permission, and that acts and statements of Filson were inconsistent with a claim of ownership adverse to plaintiff; and that he was not in continuous possession of the land. The evidence was heard by the court, who rendered judgment in plaintiff's favor, and the defendants appeal. [1, 2] The question presented for decision on this appeal is whether the general finding of the court in favor of the plaintiff is sustained by sufficient evidence. It is conceded that the plaintiff has the record title. The defendant is compelled to rely on such right as was gained by Filson's possession of the land. The tract was inclosed in the big pasture of Filson, and it is shown that he began pasturing and using the land more than 15 years before this suit was commenced; but, troversy, and it was then agreed that if Fila party cannot gain title to the land of an- son and his brother would fence out Laird's other by possession, unless it is really ad- land they should have permission to use the verse. The plaintiff claimed and offered tes- plaintiff's land, and acting upon this agreetimony tending to show that the occupancy ment Laird's land was fenced out. It ap of the land by Filson was permissive in char- pears that during this long period while the acter, and that it was held in subordination | plaintiff's land was inclosed in the pasture to plaintiff's title and ownership. The tes- Filson allowed the plaintiff to pay the taxes timony in behalf of defendant, if it had been on the tract. This is not a controlling ciruncontradicted, would have supported her cumstance, but it is one of the means whereclaim of adverse possession, but opposing tes- by a claim of ownership is asserted, and the timony of the plaintiff tended to show that failure to pay taxes for so long a time tends Filson's possession of the land lacked the to weaken a claim of ownership by adverse essential elements of adverse possession. Oc- possession. 1 R. C. L. 699. At one time the cupancy in common with the owner or with plaintiff overlooked the payment of his taxes, his consent and in recognition of his right and the tract was sold to the county for the is not sufficient to constitute adverse posses- delinquent taxes, and subsequently Filson obsion. To gain title to the land of another tained an assignment of the certificate. the possession must be open, notorious, ex- When the land was redeemed Filson accepted clusive, and hostile-a possession of such a the redemption money that was paid. The nature and notoriety that the owner may be plaintiff testified that the first intimation he presumed to know that the occupant is claim- had of the adverse claim to the land was in ing a title inconsistent with his own. Gild1913 when he went to pay his taxes and ehaus v. Whiting, 39 Kan. 706, 18 Pac. 916; found they had been paid by another. The Anderson v. Burnham, 52 Kan. 454, 34 Pac. facts and circumstances in evidence tend 1056; 1 R. C. L. 700. A possession, however to sustain the theory of the plaintiff and the open and long continued it may be, will not decision of the court. It devolves upon one operate as a disseisin and commencement of claiming title by adverse possession to cleara new title, unless it imports a denial of the ly make out his claim. It has been said that: owner's title and an appropriation of the land by the occupant to his own use. There appears to be abundant proof to sustain the finding of the court and therefore the judgment is affirmed. All the Justices concurring. (102 Kan. 684) LINDERHOLM v. WALKER, Probate Judge.* (No. 21411.) (Supreme Court of Kansas. March 9, 1918.) (Syllabus by the Court.) -APPROVAL OF APPEAL BOND. "Adverse possession is to be taken strictly, and every presumption is in favor of a possession in subordination to the rightful owner. [3, 4] There was evidence that after plain- Title by adverse possession, therefore, must be tiff's land was fenced in with that of Filson established by clear and positive proof. It canthe latter openly and tacitly recognized that not be made out by inference." 1 R. C. L. 695. plaintiff was the owner of the tract. It is not uncommon, as we have seen, for cattlemen to fence in with their own the unused land of nonresidents, and they do this witnout any intention of acquiring title to the tracts so inclosed. Filson built his pasture fence around a number of tracts which he did not own. In negotiating a sale of his ranch in 1905 long after the fencing in of plaintiff's tract he informed the proposed purchaser that the tract in question belonged to 1. MANDAMUS 57(2)-DISCRETIONARY ACTS the plaintiff, and that it could be obtained The Supreme Court cannot require a probate at a reasonable price. At that time he dis-judge to approve an appeal bond which does not cussed with the purchaser how soon the owner of this land as well as the owners of other lands inclosed within the pasture might wish to occupy and use them, and Filson then said he "could get it later on very cheap." The purchaser testified that at that time Filson did not make any claim to the ownership of the plaintiff's land. At another time Filson inquired as to the price of the land in question, and when it was given to him he stated that when he closed up a deal that he had on hand he would have the money and would buy the tract. While Filson's brother was in charge of his ranch litigation arose between the brother and one Laird, who owned a tract of land inclosed in the pasture, over the destruction of Laird's crops on his Application for an alternative writ of manland. The plaintiff, who was a friend of damus by Justus B. Linderholm against J. Laird, aided in the settlement of the con- W. Walker, as Probate Judge of McPherson For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes satisfy the probate judge as to its sufficiency, Some other simple reasons showing why DUCT OF LITIGATION. who is under guardianship cannot conduct litiA person who has been adjudged insane and gation without the supervision, control, and protection of his guardian. 4. INSANE PERSONS 99-ACTION-DISMISSAL. has been adjudged insane is the plaintiff in an When it clearly appears that a person who action, and that he is seeking to maintain that action independent of his guardian and without the approval of the latter, the action should be dismissed. Rehearing denied April 12, 1918. |