judgment of the district court is not appealable, and that therefore this court was without authority to grant a supersedeas staying execution of the judgment, and lacks jurisdiction to order the court below to act upon the motion for a new trial. It is said that no motion for a new trial was proper; that the district court has concurrent jurisdiction with the Supreme Court in habeas corpus; that no provision is made by statute authorizing an appeal from a judgment or decision in habeas corpus; and that the weight of authority is to the effect that, independent of any statutory provision, an appeal will not lie. Manifestly the question whether this court may review a judgment or decision of the district court in habeas corpus is primarily involved. Great conflict of opinion exists upon the question whether a judgment in habeas corpus is appealable. Many courts hold that, in the absence of statutory provision, where the action is strictly one to obtain the release of a person who claims to be illegally restrained of his liberty, no appeal lies. Other courts recognize a distinction which sometimes necessarily arises by reason of the nature and scope of the decision, and have held that in that class of habeas corpus proceedings, where the right to the custody of a minor child is the thing determined, an appeal will lie. The action is said to partake of the nature of a private suit, in which the public has no concern. The rights of the parties are determined as in any civil action, and, being a civil action, the right to appeal follows.

Defendant relies upon the decision in Re King, 66 Kan. 695, 72 Pac. 263. In that case we declined to regard a former judg ment by another court in habeas corpus for the custody of a child as absolutely conclusive and binding upon this court. The controlling consideration, however, is expressly declared to be that of the welfare of the child. It is there said: "We agree that, so far as such a proceeding is to be considered as a mere trial of conflicting private rights, there is no reason in the nature of things why the doctrine of estoppel by former adjudication should not apply. When

*

a court in a proper proceeding, wherein conflicting claims to the right to the custody of a child are litigated, takes the custody from the parents and bestows it upon some other person, the legal right of the parent is to that extent extinguished, and the new custodian has in that respect the same right formerly held by the parents. The parents may not dispute such right nor relitigate it, except upon a new state of facts. But the court has the same power to change the custody as against the new custodian as it had originally against the parents." In re Hamilton was decided at the same term. 66 Kan. 754, 71 Pac. 817. The exact question there was whether a former judgment in habeas corpus determining the custody of a child was res judicata, and the distinction be

tween that and ordinary habeas corpus proceedings was recognized. The court uses this language: "After a careful examination of the authorities we are inclined to the opinion that in cases of this character, where the controversy arises over the custody of a child, the real issue is one between private parties contesting a question of private right, under the form of habeas corpus proceedings, in which there arises no question of personal liberty, and in consequence all matters in issue arising upon the same state of facts determined in the prior proceeding should be regarded as settled and concluded." It is said in Freeman on Judgments (4th Ed.) § 1324: "The principle of res judicata is also applicable to proceedings on habeas corpus, so far at least as they involve an inquiry into and a determination of the rights of conflicting claimants to the custody of minor children. * The principle of public policy requiring the application of the doctrines of estoppel to judicial proceedings, in order to secure the repose of society, are as imperatively demanded in the cases of private individuals contesting private rights under the form of proceedings in habeas corpus as if the litigation were conducted in any other form." In re King, supra, is not in conflict with this, nor with the doctrine in Re Hamilton, supra. It merely adds the modification that this court will consider the best interest of the child as always paramount to the rights of contending claimants, and will not be bound by the hard and fast rule adopted by some courts, to the effect that it must first be made to appear that a change in the condictions surrounding the child has occurred since the former adjudication.

A well-considered case directly in point is State, Baird Pros., v. Baird & Torrey. 19 N. J. Eq. 481. There it was decided that an appeal in such a case will lie, notwithstanding the proceedings were by babeas corpus, and that while in technical strictness the office of the writ is simply to remove unlawful restraint, and where this is the only purpose the right to appeal was a debatable question, it is said that in habeas corpus for the custody of a child the petition takes a wider scope and invokes the exercise of that power of the court which is quasi parental. It was held that the court in such a case acts under its general jurisdiction of the affairs of infants, and not by force of its more limited jurisdiction by proceedings in habeas corpus. See, also, In re Sneden, 105 Mich. 61, 62 N. W. 1009, 55 Am. St. Rep. 435; 9 Encycl. P. & P. 1071; 15 A. & E. Encycl. Law, 213; 5 Current Law, 1619, tit. "Habeas Corpus," § 8; Mahon v. People, 218 III. 171, 75 N. E. 768; Cormack v. Marshall, 211 Ill. 519, 71 N. E. 1077, 67 L. R. A. 787; People ex rel. Lawrence v. Brady, 56 N. Y. 182; People v. Court of Appeals, 27 Colo. 405, 61 Pac. 592, 51 L. R. A. 105. In the latter case the Colorado

court say: "Whatever may be the rule in this regard applicable to the usual judgment in habeas corpus discharging a party from illegal imprisonment, we think that in a case where the controversy involves the right to the custody of an infant, although the writ of habeas corpus is used to determine that right, it is nevertheless a civil suit, and, the judgment rendered being a final adjudication in regard to such custody, it is clearly reviewable by the Court of Appeals, under the statute creating that court." Some of the authorities cited, supra, are based upon the conclusiveness of the former decision, proceeding upon the theory that the appealability depends entirely upon whether the former judgment is res judicata. But it is not the rule that to constitute a final judgment for the purposes of appeal it must be a bar to another suit. At common law in the Court of King's Bench a final judgment did not mean a final determination of the rights of the parties, but final merely as to the particular suit. The same construction of the meaning of the term "final judgment" has been adopted by the Supreme Court of the United States in Weston et al. v. City Council of Charleston, 2 Pet. 449, 7 L. Ed. 481. To the same effect, see Colorado Eastern Ry. Co. v. Union Pac. Ry. Co., 94 Fed. 312, 36 C. C. A. 263. A judgment in forcible entry and detainer cannot be pleaded as a bar to another action by either party, but it is, nevertheless, a final judgment from which an appeal will lie. Redden v. Tefft, 48 Kan. 302, 29 Pac. 157. And many other orders and judgments which are not res judicata are final for the purposes of appeal.

Another quite pertinent consideration suggests itself, which is that, whether the judg ment was or was not an appealable one, this court by granting a stay of proceedings assumed to have jurisdiction, and until ultimately decided by this court to the contrary it is appealable so far as that question concerns or affects this proceeding. We hold, however, that the judgment of the district court is one from which an appeal will lie. The effect of the Illinois judgment is manifestly not involved in this proceeding, and therefore nothing said herein in reference to the conclusiveness of such judgments is decisive of that question.

2. Plaintiff in her petition for this writ of mandamus, after reciting the proceedings below, says: "Thereupon Mrs. Bleakley, intending no disrespect to the court, but feeling that her rights had not been respected, and that the court had arbitrarily deprived her of her right to give bond to stay execution, which bond she could give in any sum which a court could reasonably require, and fearing that the illegal act of the court might cause her to lose her baby, she took the train to Moline, Ill., the home of the relators in the Kansas suit, and is now an exile from Kansas and her home, resting securely in the

possession of her child under the laws of Illinois and under the protection of its courts." Beyond any question she was guilty of contempt in removing the subject of controversy from the jurisdiction of the court. It is urged by her counsel that she was to some extent justified in her conduct by the action of the court in refusing to grant her a stay of execution. Her application to be permitted to give a stay bond was made twice, once immediately after the judgment was rendered and again after the motion for a new trial had been by the court continued to the next term. Both of these applications were made under the provisions of chapter 322, p. 539, Laws 1905, which chapter reads as follows: "Section 1. That after the rendition of a judgment or decree in any civil action in any of the district courts of the state of Kansas, that upon the execution of a good and sufficient bond, to be approved by the court, by the party or parties against whom such judgment or decree may be rendered, it shall be the duty of such court to stay execution or order of sale upon such judgment or decree for a reasonable length of time, for the purpose of allowing such party or parties against whom such judgment or decree may be rendered to file proceedings in the Supreme Court of Kansas to reverse, vacate or modify such judgment or decree." Aside from any express statutory provision, it is generally the policy of the courts to preserve the status quo of the parties, pending an appeal, upon proper security being given, when that may be done without manifestly defeating the ends of justice. This statute, however, declares in positive terms that it shall be the duty of the court to grant the stay. It gives a party situated as was the plaintiff, when the judgment was rendered, a right which depends in no respect upon the discretion of the court. Counsel for defendant suggest a supposed case in habeas corpus for the custody of a young girl, where it might be clearly established that the defeated party intended to keep her for the purpose of prostitution, and it is argued that to permit him under such circumstances to stay proceedings on the judgment would defeat the ends of justice. It is sufficient to say that our habeas corpus act makes express provision by which the court or judge may make such order for the temporary custody of the person as justice may require; and, in the absence of such provision by statute, the court would have inherent power in a case like the one supposed.

The learned judge of the trial court must have misconceived the force and effect of chapter 322, p. 539, Laws 1905, in refusing to permit Mrs. Bleakley to give a bond and stay proceedings. Nothing in the findings of the court seem to warrant the inference that there was any special necessity for placing the child in possession and control of the Barclays pending the final determination of

the rights of the parties. The $4,000 bond which the court required of the successful party was one for which no express provision is made by statute, and changed the status of the parties. Conditions might exist which would authorize a court to require such a bond, but the one which Mrs. Bleakley asked to be permitted to give is expressly provided for by statute, and preserved the status quo. Her application should have been granted and the proceedings stayed. When this court granted a stay of further proceedings on the judgment, she was no longer in continuous contempt in failing to return with the child, because the district court no longer had power to enforce the judgment, or jurisdiction to act in the case further than to pass upon the motion for a new trial. Our action in superseding the judgment did not in any sense relieve her from the charge of or penalty for her previous contempt; but, as observed, over that we have no jurisdiction. In order to complete the record for review by this court, it became at once the duty of the court below to rule upon the motion for a new trial by either granting or denying it. This is all that is directly involved in the proceeding.

The writ will therefore issue, directing defendant to pass upon the motion for a new trial. All the Justices concurring.

(73 Kan. 295) MISSOURI PAC. RY. CO. v. PERU-VAN ZANDT IMPLEMENT CO.

(Supreme Court of Kansas. Oct. 6, 1906.) CARRIERS LIEN FOR FREIGHT - DAMAGE TO GOODS-CONVERSION.

Where a common carrier becomes liable to the consignee of goods for damages to the property received in transit, and the amount of such damages equals or exceeds the freight bill on the damaged goods, the lien of the carrier is thereby extinguished, and the consignee is entitled to the possession of such goods without payment of freight, and in such a case refusal of the carrier to deliver the goods to the consignee upon demand constitutes a conversion.

[Ed. Note. For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 338, 339, 858, 900.] (Syllabus by the Court.)

On rehearing. Affirmed.

For former opinion, see 85 Pac. 408.

GRAVES, J. This case was decided at the March sitting of this court, 1906. See 85 Pac. 408. A rehearing was granted upon the proposition of law stated in the second syllabus, which reads: "When a common carrier negligently delays the delivery of goods, so that the damages occasioned by such delay exceeds the amount of freight due for the transportation of such goods, the consignee may rightfully demand the delivery of the goods, without payment of freight, and a refusal by the carrier to surrender possession upon such demand is wrongful, and amounts to a conversion."

The plaintiff in error urgently objects to this statement of the law, and insists that it is opposed to both reason and authority. This particular point received very little attention at the first argument of the case, and very few cases directly in point have since been cited by either party. Under some of the older cases, especially in England, the consignee was required to first pay the freight and bring an action of damages afterwards. This rule obtained because of the law then existing, concerning the forms of action in which a set-off for unliquidated damages might be litigated. Under the modern procedure of this country, however, and especially in this state, where the policy is to litigate every controversy between the parties, in the same suit, and thereby avoid circuity and multiplicity of actions, this class of cases cannot be controlling. 25 Am. & Eng. Enc. of Law (2d Ed.) 484. Apparently the plaintiff in error relies upon the case of Miami Powder Co. v. Port Royal, etc., 38 S. C. 78, 16 S. E. 339, which may also be found in 21 L. R. A. 123, and the cases therein cited. This case is cited in the former opinion in support of the proposition in question. The citation was made upon the assumption that the syllabus of the case stated the law as given in the opinion, but on further examination they do not seem to be alike. We have since carefully examined that case, and find the only question really decided by it is that the evidence in the case did not justify the instructions given. The trial court in that case adopted the law as stated by this court, and to which the plaintiff in error objects. deing so it followed Ewart v. Kerr, Rice (S. C.) 203, which had been affirmed in 2 McMul. (S. C.) 141. Neither of these cases have been modified or reversed, but, so far as we have been able to ascertain, still stand as the law of South Carolina. The Supreme Court did not reverse the trial court because the law given was erroneous, but for the reason that, if correct, it did not apply to the facts of that case, as the evidence did not show whether the damages claimed equaled or exceeded the freight bill. The court made the suggestion, apparently for the future guidance of the trial court, that the rule of law stated in the cases of Shaw v. Railroad, 5 Rich. Law (S. C.) 462, 57 Am. Dec. 768; Nettles v. Railroad, 7 Rich. Law (S. C.) 190, 62 Am. Dec. 409, was more applicable to the facts of that case than the one followed. This suggestion is not inconsistent with the former cases followed by the trial court, nor with the rule stated by this court in the syllabus under consideration. In the case of Shaw v. Railroad, supra, the goods shipped consisted of 10 barrels of molasses. Two of them leaked during transit. The consignee accepted eight barrels, but refused to accept the two that were leaking, and sued the carrier for the value of two full barrels. It was held that the plaintiff should have received all of the barrels, and sued for the value of the

In

Kan.)

amount of loss by leakage. In the case of Nettles v. Railroad, supra, the carrier tendered the goods to the consignee, who refused to accept them, and sued for the value of the entire shipment. It was held that he ought to have received the goods, and sued for the difference in their value when tendered, and when they ought to have been delivered. The damages were caused by delay in transit, but no question as to payment of freight was considered. The discussion relates to the proper measure of damages. The case cannot, therefore, be considered of any weight as an authority here. In the case of Miami Powder Co. v. Pt. Royal, supra, the goods shipped consisted of kegs of powder, a few only were injured, the consignee refused to receive any of them, and pay the freight, but sued in trover for the value of all. It will be observed that the damages complained of were not the result of delay in delivery, but because of a direct injury to a part of the goods. In such a case, it is not unreasonable to say that when freight is shipped in bales, barrels, kegs, or other forms, where the injured parcels can be readily separated from those which are uninjured without affecting the value of the shipment as a whole, the rule as to whether the consignee would be entitled to the possession of the entire shipment without payment of freight might be different from that which should be applied when the entire shipment consists of a single machine, which cannot be separated without destroying its value. We conclude, therefore, that the case of Miami Powder Co. v. Pt. Royal, supra, does not decide the question here in controversy either way. The facts in the two cases are dissimilar. other cases cited by the plaintiff in error relate to what constitutes a conversion, and to the proper measure of damages where goods are injured in transit, by the negligence of the carrier.

The

In argument the plaintiff in error objects to the rule stated by this court because of the embarrassments which may be imposed upon carriers by dissatisfied shippers. But the rule contended for by it would. in our view, enable carriers to impose much greater embarrassment upon shippers. A rule which would require a shipper to pay his debt to a carrier, who owes him a greater sum, does not seem to be a just and fair way to settle a controversy. It is conceded by the plaintiff in error that in an action by the carrier for the freight, after the goods have been delivered to the consignee, damages to the goods might be collected, and that replevin would lie against the carrier for the goods without payment of freight if the damages equaled or exceeded the freight bill; but it insists that a suit for the value of an entire shipment will only lie when there has been a conversion, which has not been shown here. On the other hand, the defendant in error claims that both reason and authority. sustain the law as stated in the syllabus, ob87 P.-6

81

He argues

jected to by the plaintiff in error. that the right of the carrier to possession rests upon its lien for freight; that where the carrier becomes liable to the consignee, on account of damages to the property while in transit, in a sum equal to or greater than the freight bill, the lien thereby becomes extinguished, because, "where there is no debt, there can be no lien." He argues, further, that under such circumstances the right of possession is in the consignee, and a refusal of the carrier to deliver upon demand constitutes conversion. In support of these contentions he cites the case of Dyer v. Grand Trunk R. R., 42 Vt. 441, 1 Am. Rep. 350. This was an action of replevin, but the court said in substance that, when the damages to the goods equal the freight bill. one debt offsets the other, and the lien of the carrier vanishes, leaving the right of possession in the owner. In the case of 'Moran Bros. v. Northern Pacific R. R., 53 Pac. 50, the Supreme Court of Washington said: "If the carrier has negligently delayed delivery of goods, or otherwise subjected itself to liability for damages in respect to the property carried, equal to or greater than the amount of the freight, the consignee may obtain replevin without a tender; and the claim for freight and the claim for damages may be adjudicated in the replevin suit." Cobbey on Replevin, § 515, reads: "The right of a carrier to retain property until its charges for carriage are discharged rests upon the performance of the contract of carriage upon its part. If it has negligently delayed the delivery of the property at its destination, or otherwise subjected itself to liability for damages to the consignee in respect to the property carried, that would disentitle it to the extent of such liability to demand and recover freight; and if the damage should exceed the amount of the freight to which it would otherwise be entitled, of course. it would not be entitled to demand and recover anything for the carriage of the property. And in such cases the owner or consignee may maintain replevin without a tender, and the claim for freight by the defendant, and the claim for damage by the plaintiff, at least to the extent of the freight charge, may be adjudicated in the replevin suit." The case of Bancroft v. Peters, 4 Mich. 619, is to the same effect. In the case of Marsh v. Union Pac. Ry. Co. (C. C.) 9 Fed. $73, Judge Hallett of the United States District Court for Colorado, held that trover would lie for the value of freight held by a carrier under a lien which did not exist. In 1 Jones on Liens (2d Ed.) § 331, it is said: "The carrier's lien may be defeated by an injury to the goods carried happening by the carrier's fault to an amount larger than his charge for freight. His right to freight and to detain the goods for its payment results from his performance of the contract to carry the goods. If he fails to carry the goods and have them ready for

delivery, he cannot claim his freight." 8 Am. & Eng. Enc. of Law (1st Ed.) 978, § 6. The proposition seems reasonable that, when a carrier's lien is gone, subsequent retention of possession of freight against the wish of the owner is wrongful, and the owner may thereafter sue for the possession thereof in replevin, or for the value as upon conversion. We understand the general rule to be that a refusal to deliver the possession of personal property upon demand by the owner, who has the right to possession, amounts to a conversion, and the owner may sue for the value at once. 28 Am. & Eng. Enc. of Law (2d Ed.) 705; Roberts v. Yarboro, 41 Tex. 449; Briggs v. Haycock, 63 Cal. 343; Transportation Co. v. Sellick, 52 Ill. 249; Singer Mfg. Co. v. King, 14 R. I. 514.

We conclude that the rule stated in the syllabus is more in harmony with modern procedure, and more in consonance with fairness between the parties, and less liable to lead to embarrassments, than the rule contended for by the plaintiff in error, and therefore do not feel inclined to make any change therein. All the Justices concurring.

(149 Cal. 659)

FOX v. TOWNSEND et al. (L. A. 1,471.) (Supreme Court of California. Aug. 30, 1906.) 1. APPEAL-REVIEW-GROUNDS OF ACTION OF COURT BELOW-PRESUMPTIONS.

The statement in the brief of appellant as to the ground on which a motion to set aside a judgment was granted is no part of the record; and in the absence of any other showing in the record of the grounds for the action of the trial court, if there is any ground consistent with the record on which such action may be sustained, the court will sustain it.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 3667.] 2. JUDGMENT SETTING ASIDE DEFAULT GROUNDS STATUTES-CONSTRUCTION.

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Code Civ. Proc. § 473, providing that, when a summons has not been personally served, the court may allow defendant, within one year after the rendition of any judgment, to answer to the merits, authorizes the court, on a proper showing and in the exercise of a sound discretion, to set aside a judgment as against a defendant not personally served and allow him to answer to the merits, though the proceedings by publication are regular and the judgment is valid on its face.

[Ed. Note. For cases in point, see vol. 30, Cent. Dig. Judgment, §§ 251, 253, 265.] 3. APPEAL-PRESUMPTIONS.

In the absence of a showing to the contrary, the court on appeal will assume that a sufficient showing was made to warrant the court in setting aside a judgment rendered against a defendant not personally served.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 3784, 3785.]

Department 1. Appeal from Superior Court, Los Angeles County; M. T. Allen, Judge.

Action by Edwin R. Fox against W. H. Townsend and others. From a judgment in favor of defendant, R. P. Mudge, rendered

after setting aside a judgment in favor of plaintiff, he appeals. Affirmed.

See 83 Pac. 272.

Cole & Cole, for appellant. O. B. Carter, for respondents.

ANGELLOTTI, J. Plaintiff instituted this action to quiet his title as to various lots of land in the city of Los Angeles, against many defendants, including R. P. Mudge. As to most of said defendants, including Mudge, the only attempted service of summons was by publication. As to said defendants, they not having appeared, default was entered on October 3, 1902, and judgment was rendered on said default in favor of plaintiff and against said defendants on December 23, 1902. On July 3, 1903, the trial court made an order granting a motion of defendant Mudge to set aside a judgment as to him, and allowed him to answer to the merits of the original action, which he did on the same day, disclaiming any interest in the land described in the complaint, except one lot, as to which one lot he denied plaintiff's claim of ownership and alleged title in himself. On the issues thus made, the cause was tried as between the plaintiff and Mudge, and the trial court found in favor of Mudge, and gave judgment in his favor as to said lot. Plaintiff appeals from the order of July 3, 1903, setting aside the original judgment against Mudge, and also from the judgment finally entered in favor of Mudge, his only contention being, however, as to the order setting aside the original judgment. If that order was correctly made, there is no error shown by the record as to the subsequent proceedings.

The record on appeal consists solely of the judgment roll and the order setting aside the original judgment, there being no bill of exceptions. The record does not disclose the ground upon which the motion to set aside the judgment was based, or upon which the lower court acted, showing simply that a motion of Mudge to set aside the judgment was granted, and Mudge allowed to answer to the merits. Appellant, in his brief, states that the ground upon which the original judgment was set aside as to Mudge was that it was void for the reason that the court had not acquired jurisdiction as to him on account of the insufficiency of the affidavit for the publication of summons in its allegations as to his residence out of the state. He then attempts to show that the affidavit was legally sufficient in this respect to support the order for publication of summons, and hence that the judgment based thereon was not void upon its face. While we are inclined to the opinion that the affidavit was insufficient to support an affidavit for publication as to Mudge, and that the publication was, as to him, ineffectual to confer jurisdiction, it