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case no doubt exists. But it may be evidence of a doubtful or ambiguous import; for example, of bias, of a prior self-contradiction, of an error of fact, and so on through the whole series of kinds of discrediting evidence. It is obvious that the theory of each of these kinds of evidence must be considered before it can be said whether it affects the witness' character."

From these several statements of the law we think it a fair and reasonable deduction that when a witness has testified, and the opposite party has, either upon cross-examination of such witness or by the introduction of independent testimony, impeached such witness in any one of several particulars, it is competent to corroborate him by evidence of his general reputation for truth and veracity. But it is not every act of the adverse party which would have the effect to discredit the witness or his testimony that entitles him to such corroboration. The weight of modern authority seems to classify the cases in which evidence of general reputation in support of a witness is admissible practically as follows:

First. Where there has been a direct attack upon the character of the witness by offering evidence tending to show that his general reputation for truth and veracity is bad. This rule is universal and unquestioned.

Second. Where the witness has been impeached by evidence of particular acts of criminal or moral misconduct, either on cross-examination or by record of conviction. While this rule is not universally adopted by the American courts, it is supported by the following cases: Lewis v. State, 35 Ala. 386; People v. Ah Fat, 48 Cal. 61; People V. Amanacus, 50 Cal. 233; State v. Fruge, 44 La. Ann. 165, 10 South. 621; Vernon v. Tucker. 30 Md. 456; Russell v. Coffin, 8 Pick. (Mass.) 143; Gertz v. Fitchburg R. Co., 137 Mass. 77, 50 Am. Rep. 285; People v. Rector, 19 Wend. (N. Y.) 569; Carter v. People, 2 Hill (N. Y.) 317; People v. Gay, 7 N. Y. 378; Stacy v. Graham, 14 N. Y. 492; Webb v. State, 29 Ohio St. 358; Wick v. Baldwin, 51 Ohio St. 51, 36 N. E. 671; Warfield v. Ry. Co., 104 Tenn. 74, 55 S. W. 304, 78 Am. St. Rep. 911; Smith v. Tate, 40 Tex. Cr. R. 290, 50 S. W. 363: Luttrell v. State, 40 Tex. Cr. R. 651, 51 S. W. 930; Paine v. Tildon, 20 Vt. 554; George v. Pilcher, 28 Grat. (Va.) 299, 26 Am. Rep. 350; Reynolds v. Railroad Co.. 92 Va. 400, 23 S. E. 770; Clark v. State. 117 Ga. 254, 43 S. E. 853; Clark v. Bond, 29 Ind. 555: Warfield v. L. & N. Ry., 104 Tenn. 74, 55 S. W. 304, 78 Am. St. Rep. 911.

Third. Impeachment by evidence of corruption on the part of the witness in connection with the case in which he appears.

Fourth. Impeachment by evidence of contradictory or inconsistent statements, admitted on cross-examination or shown by the testimony of other witnesses. Upon this last rule the authorities are in irreconcilable

conflict, and are about equally divided; but the better reason seems to favor the right to corroborate the witness, whose evidence is in this manner discredited, by allowing proof of his general reputation for truth and veracity. Hadjo v. Gooden, 13 Ala. 718; Holley v. State, 105 Ala. 100, 17 South. 102; Mercer v. State, 40 Fla. 216, 24 South. 154, 24 Am. St. Rep. 135; McEwen v. Springfield, 64 Ga. 159; Clark v. State, 117 Ga. 254, 43 S. E. 853; Paxton v. Dye, 26 Ind. 394; Clem v. State, 3 Ind. 480; Board v. O'Conner, 137 Ind. 622, 35 N. E. 1006, 37 N. E. 16; State v. Boyd, 38 La. Ann. 374; Davis v. State, 38 Md. 15; People v. Rector, 19 Wend. (N. Y.) 583; Isler v. Dewey, 71 N. C. 14; Burrell v. State, 18 Tex. 713; Sweet v. Sherman, 21 Vt. 23; Stevenson v. Gunning's Estate, 64 Vt. 601, 25 Atl. 697; State v. Staley, 45 W. Va. 792, 32 S. E. 198.

There are other particular cases in which, in the exercise of a wise discretion, the trial court may properly allow evidence of general reputation of a witness in support of such witness; but there must be some special or particular element introduced into the case by the adverse party by which such witness is impeached or discredited. But the foregoing rules embrace the general classes of cases in which such practice is allowable. In the examination of the case under consideration, we find nothing in the evidence nor in the cross-examination of the defendant, which brings the case within any of the adjudicated cases. The question as to whether he signed the note sued on was the vital and controlling question. He testified that he did not sign the note, that he did not see the payee on the day the note purported to have been executed, and offered other corroborating evidence to support his position. The bank offered some expert evidence upon the question of the identity of the signature, and attempted to prove that the defendant had made certain admissions from which it might be inferred that he had signed the note. There was nothing involv ing moral turpitude of the defendant in the transaction. If a crime had been committed. it was by the person who forged the note. It is not sufficient, to entitle one to corroborate his evidence by general character, that the facts to which he testifies are contradicted or disproved by other witnesses. The testimony introduced by the defendant that' his general reputation for truth and 'veracity was good was liable to have great weight with the jury and to have influenced their verdict. It was reversible error to admit such evidence under the circumstances presented by the evidence in the case.

The judgment of the district court of Pawnee county is reversed, at the costs of the defendant in error, and the cause remanded, with directions to grant a new trial. All the Justices concur, except IIAINER, J., who tried the case below, not sitting, and IRWIN, J., absent.

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Section 4624, Wilson's Rev. & Ann. St. 1903, fixing one year as the time within which an action may be revived in the names of the representatives or successors of the plaintiff, is not a mere limitation upon a remedy, but conditions the very right to revive; and parties seeking to avail themselves of its benefits must strictly comply with its terms.

3. SAME-CONSENT OF DEFENDANT.

Under section 4624, Wilson's Rev. & Ann. St. 1903, upon the death of the plaintiff an order to revive an action in the names of the representatives or successors of a plaintiff shall not be made without the consent of the defendant after the expiration of one year from the time the order might have been first made. The statute is not suspended until the appointment of the legal representatives, but begins to run after the expiration of a reasonable time from the death of the plaintiff in which a legal representative might have been appointed. 4. SAME.

Where the plaintiff in an action died on the 10th day of April, 1902, and without the consent of the defendant the order of revival in the name of the administratrix was made on the 1st day of December, 1903, and thereafter upon the hearing it was found that the order was not made within one year from the time it might have been first made, held. that the action was barred by the statute. and section 4624 warranted a dismissal of the action.

(Syllabus by the Court.)

Error from District Court, Noble County; before Justice Bayard T. Hainer.

On the

Action by Henry E. Glazier against T. H. Heneybuss and Martha Heneybuss. death of plaintiff, Lydia E. Glazier, administratrix, was substituted. Judgment for defendants, and plaintiff brings error. Affirmed.

1904, the defendants filed their answer to the amended petition, alleging that the court was without jurisdiction and that the action could have been revived in the name of the administratrix within 30 days after the death of the plaintiff, and that the action was, therefore, barred by the statute of limitations. The administratrix filed a reply, admitting all the facts set up in the answer, except that the cause could have been revived in the name of the administratrix within 30 days after the death of the plaintiff, and that said action was barred by the statute of limitations. The issues thus joined were submitted to the court, a jury being waived, and judgment rendered in favor of the defendants for costs. The court found that the cause had not been revived within the time allowed by law for the revival of an action after the death of the plaintiff. From that judgment the plaintiff in error prosecutes this appeal, and asks a reversal of the cause upon the ground that the statute of limitations begins to run, not from the death of the plaintiff, but from the date of the appointment of the administratrix.

This question is presented to this court for the first time, and necessitates a consideration and construction of sections 4620 and 4624 of Wilson's Rev. & Ann. St. 1903. At common law the action abated upon the death of the party before trial or verdict, and, if the cause of action was of the character that did not survive, death put a final end to the suit. If the cause was one that did survive, or could survive, plaintiff or his personal representative was required to bring a new action. In order to obviate the necessity of bringing a new action, and to remedy that defect of the common law, requiring a new action to be brought where the cause of action survived, statutes have been adopted, in England and in the various states of the Union, providing that the representatives of

Smith & Scott, for plaintiff in error. Doyle the deceased party, within limitations and & Cress, for defendants in error.

GARBER, J. This action to recover on two promissory notes was brought on the 27th day of September, 1901, in the district court of Noble county, by Henry E. Glazier, as plaintiff, against the defendants in error, defendants below. Henry E. Glazier died on the 10th day of April, 1902. On May 12, 1902, his death being suggested to the court, on application of his heirs leave was granted to substitute his legal representatives as plaintiff. On March 27, 1903, upon the application of plaintiff in error, and over the objection of the defendants, the heirs were substituted as plaintiffs. On December 1, 1903, the order substituting the heirs as plaintiffs was set aside, upon the application of plaintiffs in error, and over the objections and exceptions of defendants in error an order was made reviving the action in the name of Lydia E. Glazier; administratrix of the estate of Henry E. Glazier, deceased. On January 28,

upon compliances with certain conditions, might be made parties to the suit and action proceed. Section 4620 of our statute provides: "Upon the death of the plaintiff in an action, it may be revived in the names of his representatives, to whom his right has passed. Where his right has passed to his personal representatives, the revivor shall be in their names; where it has passed to his heirs or devisees, who could support the action if brought anew, the revivor may be in their names." In this case, upon the death of the plaintiff, the right of action passed, not to his heirs, but to the administratrix of his estate. The subject-matter of the action was a part of the personal estate, and subject to the payment of the debts of the deceased, if judgment be secured and satisfied. The attempted revival in the names of the heirs was, therefore, a nullity, and is of no consequence in the determination of the question in this case.

This was virtually admitted by plaintiff in

error in filing a subsequent motion asking that the order of revival in the names of the heirs be set aside and the action be revived in the name of the administratrix. Hence the real battle in this case is waged over the construction of section 4624, fixing the time in which an order of substitution and revival might have been made in the name of the administratrix. The section reads as follows: "An order to revive an action. in the names of the representatives or successors of a plaintiff may be made forthwith, but shall not be made without the consent of the defendant after the expiration of one year from the time the order might have been made. ***" These sections of our statute were taken from the Kansas statute, and with their adoption came the construction of the Supreme Court of that state. The simple statement of the familiar and accepted rule of construction would ordinarily be considered a final and satisfactory disposition of the case, especially when the foreign state has repeatedly construed the section in question; but in this case a strenuous and heated controversy is waged over the question as to what construction has been placed upon that section of the statute by the Supreme Court of that state, and numerous authorities are cited in support of the respective sides of the controversy. As a precautionary measure, before entering upon an investigation of the authorities, for perspicuity, we add the term "latest" to the statement of the general rule of construction, so as to read: By the adoption of the statute of a foreign state, we adopt the "latest" construction of that statute at the time of its adop tion by the Supreme Court of that state.

In the case of Bauserman v. Blunt, 147 U. S. 647, 13 Sup. Ct. 466, 37 L. Ed. 316, removed from the state court of Kansas to the Circuit Court of the United States upon the authority of Toby v. Allen, 3 Kan. 399, Hanson v. Towle, 19 Kan. 273, and Nelson v. Herkel, 30 Kan. 456, 2 Pac. 110, it was held that the operation of the statute was suspended until an administrator had been appointed, and, while that case was pending on appeal in the Supreme Court of the United States, the same question was presented to the Supreme Court of the state of Kansas in the case of Bauserman v. Charlott, 46 Kan. 480, 26 Pac. 1051, and upon a careful examination and consideration of the question, and a review of the prior decisions of that court, it was held that an action by another creditor against the defendant was barred by the statute, because the plaintiff had unreasonably delayed to apply for the appointment of an administrator. Chief Justice Horton, who had delivered the opinion in Nelson v. Herkel, supra, after referring to the cases cited above as holding that "the death of the debtor operates to suspend the statute," added: "But this court has never said, when the question was properly presented, that a creditor can indefinitely prolong the time of limitation by his own omission or refusal to act,

or that the death of the debtor operates to suspend the statute of limitations indefinitely-citing Amy v. Watertown, 130 U. S. 320. 9 Sup. Ct. 537, 32 L. Ed. 953, wherein it was said: "When a party knows that he has a cause of action, it is his own fault if he does not avail himself of those means which the law provides for prosecuting his claim, or institute such proceedings as the law regards sufficient to preserve it;" also the cases of Atchison, etc., Railroad Co. v. Burlingame Twp., 36 Kan. 638, 14 Pac. 271, 59 Am. Rep. 578, and Rork v. Douglas Co., 46 Kan. 175, 26 Pac. 393, as establishing the proposition that "a person cannot prevent the operation of the statute of limitations by delay in taking action incumbent upon him," and that "to permit a long and indefinite postponement would tend to defeat the purpose of the statutes of limitations, which are statutes of repose, founded on sound public policy, and which should be so construed as to advance the policy they were designed to promote," and, following these decisions, the court arrived at the conclusion that the plaintiff's claim was barred by the statute, and said: "A reasonable time within which a creditor, having a claim against a decedent and wishing to establish the same against his estate, should make application for administration, would be, under the statute, 50 days after the decease of the intestate, or at least within a reasonable time after the expiration of 50 days; but a creditor cannot, as in this case, postpone the appointment for months and years, and then recover upon his claim. If he can do so for several months, or several years, he can do so for any indefinite length of time, and then resort to administration and establish his claim. This is certainly not in accord with the policy of the statutes. and is not a fair construction of our prior decisions."

In the case of Bauserman v. Blunt, supra, in the Supreme Court of the United States (147 U. S. 647, 13 Sup. Ct. 466, 37 L. Ed. 316). Mr. Justice Gray, delivering the opinion of the court, in reviewing the various decisions of the Supreme Court of the state of Kansas upon this question, referring to the case of Bauserman v. Charlott, supra, in conclusion, said: "That decision was evidently deliberately considered and carefully stated, with the purpose of finally putting at rest a ques tion on which some doubt had existed. It is supported by satisfactory reasons, and is in accord with well-settled principles; and there is no previous adjudication of that court to the contrary. In every point of view, therefore, it should be accepted by this court as conclusively settling that the operation of the statute of limitations of Kansas is suspended after the death of a debtor for 50 days only, during which the creditor could not apply for the appointment of an administrator, or, at most, for a reasonable time after the expiration of the 50 days."

As the proceedings to revive an action and

the proceedings to revive a judgment are substantially the same, and must correspond to the same formula, we cite the following cases in support of the rule herein announced: Angell v. Martin, 24 Kan. 335; Railway Company v. Smith, 40 Kan. 192, 19 Pac. 636; Cunkle v. Railroad Co., 54 Kan. 194, 40 Pac. 184; Berkley v. Tootle, 62 Kan. 701, 64 Pac. 620; Reaves v. Long, 63 Kan. 700, 66 Pac. 1030; Steinbach v. Murphy, 70 Kan. 487, 78 Pac. 823.

In the case at bar the order of revival in the name of the administratrix was not made until 1 year, 7 months, and 21 days after the death of the plaintiff, and not until 1 year, 6 months, and 19 days after the suggestion of the death of the plaintiff and leave to revive was granted in name of personal representatives. The answer and reply put in issue the question of fact, when the order of revival "might have been first made." The plaintiff in error was a resident of Noble county, and upon the death of the deceased, April 10, 1902, she could have applied for letters of administration, and, upon giving 30 days' notice, have been appointed administratrix of the estate of the deceased. the 12th day of May, 1902, she suggested the death of the deceased, and upon giving 30 days' notice from that date, had she filed her petition, she could have been appointed the legal representative and had the order of revival "made forthwith"; but, instead, the order of revival was not made until December 1, 1903, or nearly 18 months after the time in which it "might have been made." Without the consent of the defendants, and no showing for the delay, can it be said that the district court erred in finding that the order of revival was not made within one year from the time it "might have been first made?" There is either a limitation, or there is none. The Legislature has undoubtedly said that there is a limitation. If there is, in the language of the statute, "the order of revival upon the death of the plaintiff may be made forthwith, but shall not be made without the consent of the defendant after the expiration of one year from the time the order might have been first made." Without a revivor an action abates upon the death of the party, and without a statute there can be no revivor. The language "shall not be made" is peremptorily prohibitive. It imposes an absolute prohibition upon the granting of the order after the lapse of one year after the time when it "might have been made." At the expiration of that time the right ceases to exist. It is true the order of revival could not have been made until the appointment of the administratrix; but it was within the power of plaintiff in error to have had that appointment made. It was a condition precedent to the order of revivor. The law required her to act. She offers no evidence explanatory of the delay. She knew of the death of the plaintiff. The law said: "You may be ap

pointed administratrix, if you file your petition and give the required notice." There were no other petitions filed for that appointment and her petition, when filed, was not contested.

It is argued, however, in support of the position that the statutes should not begin to run until the appointment of a legal representative, that unscrupulous persons could prevent the appointment by contest and appeal for over one year, and, although the action might involve the whole estate, it would be forever barred. The plain language of the statute reads, "From the time when the order might have been first made," and is sufficient answer to that argument. It is not for the courts to mitigate, by opinion, the harshness of the law of limitations. It is their duty to declare the law as they find it. The limitation of revivor is arbitrary, exacting, requir ing diligence, good faith, prompt action, and he who seeks its benefits must be able to show that he has complied with all its terms. Hardship or inconvenience is insufficient. Practical impossibility, alone, will satisfy. 19 A. & E. Ency. of Law, 216. It was clearly the duty of the plaintiff in error to file her petition for letters of administration and secure the appointment as administratrix of the estate. Section 4624, construed in connection with those statutes governing the appointment of legal representatives, gave her ample time, and during the diligent prosecution of the necessary steps to secure her appointment the statute of limitations would be suspended. Under the pleadings and evidence in this case the trial court was warranted under section 4625 in dismissing the action.

We have carefully examined the authorities cited by counsel which support the general rule; but, having adopted the statutes of the state of Kansas with the construction placed thereon by the Supreme Court of that state, they are not applicable in this case. The case of Steinbach v. Murphy et al., supra. decided by the Supreme Court of that state in 1904, clarifies any uncertainty that may appear in the opinion of that court rendered in 1896 in the case of Rexroad et al. v. Johnson, 4 Kan. App. 333, 45 Pac. 1008.

There being no other error assigned or presented, upon the authorities above cited, the judgment of the district court of Noble county, dismissing the action, is affirmed.

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the defendant was a stockholder in the bank and liable as such, the contents of such book are not conclusive in the absence of testimony showing the same to have been accurately and correctly kept. And where the testimony as a whole throws doubt upon the facts sought to be established by the introduction of such evidence, and presents proof from which a conclusion may be adversely drawn, the conclusions of the trial court adverse to the conclusions sought to be established by such stock book will not be disturbed.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3935-3937.]

(Syllabus by the Court.)

Error from District Court, Logan County; before Justice Bayard T. Hainer.

Action by J. A. Willoughby, receiver of the Capitol National Bank of Guthrie, against E. P. Kelly. Judgment for defendant, and plaintiff brings error. Affirmed.

This action was brought by J. A. Willoughby, receiver of the Capitol National Bank of Guthrie, to recover from the defendant $1000, the amount of the levy of the Comptroller of the Currency upon 10 shares of stock of the said bank belonging, as alleged, to defendant. The assessment was made by the Comptroller May 9, 1904. The defendant admitted the regularity and legality of the levy, but denied liability thereunder. From the proceedings had upon the trial of the case in April, 1905, it appeared from the stock book of the bank offered in evidence that the defendant, Kelly, was the owner of 10 shares of the capital stock of the bank from and after January 31, 1902. The defendant, on becoming the owner of such stock, was elected a director of the bank, which position he filled for about a year, when he tendered his resignation in writing, which was accepted in November, 1903, at which date he claimed his entire connection with the bank as director and stockholder ceased, and therefore denies any liability for the assessment.

It appears from the record that the defend. ant, Kelly, was solicited by the president of the bank to become a director of the corporation, and that he consented, and in order to qualify him for such position, the president of the bank, Billingsley, caused the transfer of 10 shares of his stock from his name to that of the defendant, and thereafter the defendant qualified as a director, affirming in his oath of office that he was the owner of 10 shares of stock in the bank. It appears, however, that the defendant was not in fact the real owner of the stock, and the same was never delivered to him. Stock certificates were issued in his name, but the same were not signed by the president or attested by the cor porate seal. When thus partially issued, they were placed in the vault of the bank, and were there found when the receiver took charge, and no dividends thereon were ever paid to defendant. The defendant testified that when the stock was issued in his name he immediately reassigned it. by signing a blank for the assignment thereof printed on

the back of the stock certificate, but the blank for such assignment, printed on the stock found in the vault, was not signed. It is shown by the defendant's testimony that when he resigned as director he intended to sever all connection with the bank, including a retransfer of the stock to Billingsley. He was not present at the directors' meeting when his resignation was formally accepted in November, 1903, although the bank records show him to have been present. That he was in the city of Guthrie that day, and that he went to the bank, but upon arriving there was informed by the president that it was all over, and that one G. A. Nelson had been elected in his place. The defendant at the time asked the president of the bank if there was anything else for him to sign to show he had no interest in the bank, and he was told that everything had been signed, and that his stock had been transferred. Corroborating this testimony of the defendant, the record shows that on February 27, 1904, three months after the date upon which Kelly's resignation was accepted and his stock canceled, as stated by the president, Billingsley, a special stockholders' meeting was called and held. That at such meeting the owners of 960 shares were present, as follows: A. G. Brower.. C. R. Brooks.

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400 shares

10

66

510

66

10

66

30

66

10

30

66 66

40

..1,000

66

-1,000

And at this meeting a 53 per cent. assessment was levied upon all the stock of the bank.

From the testimony the trial court found the issues in favor of the defendant, and the plaintiff brings the case to this court alleging error. Other necessary facts are set out in the opinion.

Flynn & Ames and R. A. Kleinschmidt, for plaintiff in error. Strang, Devereux & Hildreth and Lawrence & Huston, for defendant in error.

GILLETTE, J. (after stating the facts as above). It is manifest that the only question to be determined in this case is as to whether or not the defendant was a stockholder in the Capitol National Bank at the time of its failure, April 4, 1904. From the facts stated, it must be conceded that he never was at any time a stockholder of the bank in good faith. This fact, however, does not relieve him from liability to the creditors of the bank to the extent that the law makes stockholders liable in case of the bank's failure, for he could not hold himself out as a stockholder, or knowingly permit the bank so to do, without assuming complete responsibility to the full extent that the law fixes liability upon stock

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