were materially erroneous or not. Besides, it does not appear that any exception was taken to any of the instructions; and this court will not review instructions given by the district court to the jury unless the instructions were excepted to at the time. Neither has it been shown that the court below erred in overruling the plaintiff in error's motion for a new trial, or in rendering judgment in favor of the plaintiff below and against the plaintiff in error.

The judgment of the court below will be affirmed. (All the justices concurring.)

(31 Kan. 672)


Filed April 1, 1884.

1. If a judgment be ordered and its terms prescribed by the court during a term, it is a judgment rendered in term time, although the entry thereof be not in fact prepared and transcribed on the journal until after the close of the term.

2. Where an order is made directing the payment of money by a garnishee into court, and such order is obeyed, the money paid to the clerk and by him applied in the satisfaction pro tanto of the judgment, and afterwards, and nearly two months after the making of such order, the defendant in the judgment moves to set it aside, and for an order directing the clerk to pay such money to him on the ground that it was exempt, and where the record does not purport to contain all the proceedings or testimony, or to show that defendant did not have actual notice of the garnishee proceedings while they were pending, held, that an order overruling defendant's motion will not be reversed. Even though the money was in fact exempt, the defendant is not shown to have been prompt and vigilant in asserting his rights.

Error from McPherson county.

Frank G. White, for plaintiff in error.

Barker & Pancoast, for defendant in error.

BREWER, J. Defendant in error, (plaintiff below,) holding a judgment in the district court of McPherson county against the plaintiff in error, filed an affidavit for the garnishment of one W. F. Shell. ́ This affidavit was filed March 8, 1883. The notice of garnishment was served on Shell the next day. On November 10, 1883, Shell answered that he had $20 in his possession belonging to defendant. On the same day an order was made that he pay it into court, which was done. On January 2, 1884, defendant filed his motion to set aside the garnishee order, and to order the clerk to pay to him the $20 paid in by the garnishee, on the ground that such money was a portion of the proceeds of the sale of defendant's homestead, and that he intended to use the same in the purchase of another. In support of this motion he filed his own affidavit. The same day the motion

was overruled, and now he brings the case here in error. He claims that the order of November 10th was a nullity, because not in fact made until November 23d; that the district court of Saline county convened on November 19th, and that, therefore, the court was not in session in McPherson county on the 23d. The order reads: "And now, on this tenth day of November, this case came on to be heard upon the motion," etc.; and is signed, "Approved; J. H. PRESCOTT, Judge;" following which are the words, "Filed November 23, 1883; H. C. PYLE, Clerk of the District Court." The certificate of the clerk to the transcript certifies it to contain "true, full, and complete copies of journal entries, as filed November 23, 1883," etc.; and upon that we remark that it would seem from the entry itself that the order was in fact made November 10th; that the entry of such order was not written out until afterwards, and until its form had been approved by the district judge. Of course, if a judgment is in fact rendered at a term, it does. not cease to be a judgment of that term because the work of writing out the entry on the record is not performed until after its close; and as this order purports to have been made on November 10th, which was nine days before the commencement of the term in Saline county, and as there is nothing to show that it was not made at such date, except that the form was not prepared and approved by the court and filed by the clerk until the 23d, it must be presumed to have been made at the time it purports to have been made. But, again, there was nothing to prevent the district court of McPherson county from being in session on November 23d, and we are not to assume that it was not. State v. Montgomery, 8 Kan. 351.

Again, it is claimed that the money was exempt because it was the proceeds of the sale of one homestead, and intended to be used in the purchase of another. Assuming that it was so exempt, still we think the ruling must be sustained; for the question is, not what is sufficient to defeat an application for an order in the first instance, but what is sufficient to compel the setting aside of such order several weeks after it has been made, and after its commands have been fully performed. There is nothing in the record to show that defendant did not have notice of all these proceedings as they transpired, and though the order was made either November 10th or 23d, his motion was not filed until January following, and until after the money had been paid in to the clerk and by him paid out. The record before us does not purport to contain all the entries, or all the papers or affidavits or other testimony. It simply purports to be a transcript of two certain entries, and of certain named papers and affidavits. What else there was before the district court we are not informed, and it is not sufficient ground for setting aside an order to show that there was a good defense to it at the time it was made. A party may have a good defense to an action, but if he fails to make such defense when the case is called for trial, he will not be permitted to come in weeks afterwards and say that the judgment was wrong and ought to

be set aside, simply because he had a good defense. The same rule applies to an order. Code, § 568. The garnishee proceedings were pending from March until November, and no reason appears why, during such time, the defendant did not assert his rights. The record does not purport to be full or contain all the proceedings. Perhaps it clearly appeared to the court that he was guilty of laches in not asserting his rights sooner. At any rate, it does not appear affirmatively that he acted promptly, and it does appear that he waited until after the order had been made and its commands performed. We may not persume error, and hence the order of the district court will be affirmed.

(All the justices concurring.)

(31 Kan. 721)


Filed April 1, 1884.

1. An action will not lie against a city of the second class for damages for the injury to adjacent property caused by a change having been lawfully made by the city authorities in the grade of a public street.

2. The provisions of sections 54 and 65, c. 100, Laws 1872, do not provide for the payment of damages incidentally caused to adjacent property by a change of the established grade of a public street.

Error from Wyandotte county.

Action by the Methodist Episcopal Church South, of Wyandotte City, Kansas, against the city of Wyandotte. On May 23, 1883, the plaintiff filed the following petition, (omitting court and title:)

"The plaintiff states that it is a religious corporation, existing, organized, and incorporated under the laws of the state of Kansas, and known by the corporate name of the Methodist Episcopal Church South, of Wyandotte City, Kansas, and complains and alleges that the defendant, the city of Wyandotte, is a municipal corporation, created, existing, and incorporated under the laws of the state of Kansas, and known by the corporate name of the City of Wyandotte,' and that said city of Wyandotte is a city of the second class, duly incorporated as aforesaid.

"Plaintiff further states that it is the owner and in possession of the following real estate, lying and being situate in the city of Wyandotte, county of Wyandotte, and state of Kansas, and described as follows, to-wit: Beginning at the north-west corner of the grave-yard survey, known as the burial ground in the allotment of the Wyandotte commissioners appointed under the treaty of Washington, approved January 31, A. D. 1855, between the United States and the Wyandotte nation of Indians; thence west 9 links and 67 poles; thence south 10 poles; thence east 6 poles and 33 links; thence north 10 degrees 30 minutes east, along the western boundary of said graveyard survey, 10 poles and 55 links, to place of beginning; containing one

half acre of land, and lying on the south side of Minnesota avenue, a public street of said city of Wyandotte, and adjoining to and abutting said street. "That on said real estate above described there is erected a large and commodious brick building, the property of and in possession of plaintiff, known as a church building, and used as a place of public worship by the plaintiff and the public; and there is also erected on said real estate a frame building containing four rooms, also the property of and in the possession of plaintiff, being a convenient dwelling-house, and used as a parsonage, or place of residence of the officiating minister. That the said buildings and other improvements on said real estate were erected some years since, at a cost of about four thousand dollars, and that the value of said real estate and said improvements thereon is of the sum of eight thousand dollars.

"That before the erection of the said buildings and improvements as aforesaid, to-wit, on or about the day of, 1872, a grade was purported and pretended to be established on Minnesota avenue, said public street, as aforesaid, and that said buildings and improvements were made and erected by plaintiff with a view and in conformity thereto. That in the month of January, 1883, said defendant did proceed unlawfully and without authority to grade and lower said street opposite to, and adjoining and abutting, plaintiff's said property, and to change said pretended established grade of said street, as aforesaid, by unlawfully, and without authority, digging and carrying away the dirt from said street, and lowering the same about nine feet, by removing and taking away the dirt from said street adjoining and abutting plaintiff's said property as aforesaid.

"That by reason of the lowering and taking away the dirt from said street as aforesaid, so done, as aforesaid, unlawfully and without legal authority, the said real estate and buildings of plaintiff, as aforesaid, are greatly damaged, and the safety thereof greatly endangered, the foundation of said buildings being likely to give away on account of the digging and taking the dirt of said street as aforesaid; and the said buildings are thereby rendered less accessible; and further, that the value of the said property is greatly depreciated and lessened, and that said property has been rendered less desirable in every way in consequence of the aforesaid illegal, unlawful, and unauthorized acts of the said defendant as aforesaid.

"Plaintiff further states that defendant well knew of the damages done to plaintiff by the lowering of the said street as aforesaid, and that no lawful means were taken by said defendant, as provided by law, to ascertain and assess the amount of the said damages so done, as aforesaid, before or at the time of the lowering said street, as aforesaid, by having the amount of damages or injury done to plaintiff, as aforesaid, ascertained and assessed by competent persons, citizens of said city, selected and qualified as is by law in such cases made and provided, and to do the same defendant wholly failed, neglected, and refused.

"Plaintiff further states that on the sixth day of March, 1883, at the city of Wyandotte, in said county and state, plaintiff presented a certain claim or demand in writing to the council of the said city of Wyandotte (defendant aforesaid) against the said defendant in the sum of fifteen hundred dollars, being the amount of damages sustained by the plaintiff by reason as aforesaid, together with a full account of the items thereof, and verified by the oath of the agent of plaintiff, as required by law; and that an allowance of the same, or any part thereof, by the said council of the city of Wyandotte, (defendant aforesaid,) was then and there refused, and said claims rejected.

"Plaintiff states that by the unlawful and unauthorized acts of said defendant, so done as aforesaid, plaintiff is injured and damaged in the sum of fifteen hundred dollars, and which sum defendant having refused to pay, or any part thereof, and by reason aforesaid an action hath obtained in favor of

plaintiff, and against defendant, in the sum of fifteen hundred dollars, being the damage sustained by plaintiff as aforesaid.

"Plaintiff therefore prays judgment against defendant for the sum of fifteen hundred dollars and for costs of suit."

On June 11, 1883, the defendant demurred to the petition upon the ground that it did not state facts sufficient to constitute a cause of action in favor of plaintiff and against defendant. On August 29, 1883, the demurrer came on for hearing. The court sustained the demurrer; to which ruling the plaintiff excepted, and brings the case here.

N. Cree, R. P. Clark, and John T. Harlow, for plaintiff in error. Henry McGrew, for defendant in error.

HORTON, C. J. The question arises whether, under the allegations of the petition, the plaintiff is entitled to recover damages. The act relating to cities of the second class provides that "the cities coming under the provisions of this act, in their corporate capacities, are authorized and empowered to enact ordinances for the following purposes, in addition to the other powers granted by law: Second, to open and improve streets, avenues, and alleys, make sidewalks and build bridges, culverts, and sewers within the city." Section 2, c. 40, Laws 1881. See, also, section 32, c. 100, Laws 1872. This power "to open and improve streets" includes the power to alter the grade or change the level of the land on which the streets are laid out. If the city has once fixed a grade, which it afterwards finds improper or insufficient, it has not exhausted its power, and therefore has the authority to change the grade to improve the streets. "As the duty is a continuing one, so is the power necessary to perform it." Smith v. Corp. of Washington, 20 How. 135; Goszler v. Georgetown, 6 Wheat. 593. There is the same reason and the same justification for changing a grade once established, when the public convenience is found to require it, that there is for fixing it in the first place; therefore, the power to open and improve streets, which includes the power to grade them, may be exercised from time to time as the wants of the city may require. Of the necessity or expediency of this exercise, the mayor and council of the city, and not the courts, are judges. The injury, if any, which resulted to the plaintiff by the change made by the city in the grade of the public street, resulted from the lawful exercise of a power granted to the city by legislative authority. For the incidental injury arising from the exercise of this authority the city is not liable. Dillon says:

"In connection with the principle that there is no implied liability for doing an act which is either direct or authorized by valid statute, may be noticed the power of municipal corporations to grade and to change the established grade or level of their streets, though the exercise of the power may be injurious to the adjoining property owners." Mun. Corp. vol. 2, (3d Ed.) § 989. Again, he says:

"The courts, by numerous decisions in most of the states, have settled the doctrine that municipal corporations, acting under authority conferred v.3,no.7-34

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