« ForrigeFortsett »
case no doubt exists. But it may be evi conflict, and are about equally divided; but dence of a doubtful or ambiguous import; the better reason seems to favor the right for example, of bias, of a prior self-con to corroborate the witness, whose evidence tradiction, of an error of fact, and so on is in this manner discredited, by allowing through the whole series of kinds of dis proof of his general reputation for truth and crediting evidence. It is obvious that the veracity. IIadjo v. Gooden, 13 Ala. 718; theory of each of these kinds of evidence Holley v. State, 105 Ala. 100, 17 South. 102; must be considered before it can be said Vercer v. State, 10 Fla. 216, 24 South. 151, whether it affects the witness' character." 24 Am. St. Rep. 133; McEwen v. Springfield,
From these several statements of the law 04 Ga. 139; Clark v. State, 117 Ga. 231, 43 we think it a fair and reasonable deduction S. E. 853; Paxton v. Dye, 26 Ind. 394; Clem that when a witness has testified, and the v. State, 3 Ind. 480; Board v. O'Conner, opposite party has, either upon cross-exain 137 Ind. 622, 33 N. E. 1006, 37 N. E. 16; ination of such witness or by the introduc State v. Boyd. 38 La. Ann. 374; Davis v. tion of independent testimony, impeached State, 38 Md. 15; People v. Rector, 19 Wend. such witness in any one of several particulars, (X. Y.) 583; Isler v. Dewey, 71 N. C. 14; it is competent to corroborate him by evi Burrell v. State, 18 Tex. 713; Sweet v. Sherdence of his general reputation for truth and man, 21 lt. 23; Stevenson v. Gunning's Esveracity. But it is not every act of the ad tate, 01 Vt. 001, 23 Atl. 697; State v. Staley, verse party which would have the effect to 15 W. Va. 792, 32 S. E. 198. discredit the witness or his testimony that There are other particular cases in which, entitles him to such corroboration. The in the exercise of a wise discretion, the trial weight of modern authority seems to classi court may properly allow evidence of genfy the cases in which evidence of general eral reputation of a witness in support of reputation in support of a witness is ad such witness; but there must be some spemissible practically as follows:
cial or particular element introduced into First. Where there has been a direct at the case by the adverse party by which such tack upon the character of the witness by witness is impeached or discredited. offering evidence tending to show that his the foregoing rules embrace the general general reputation for truth and veracity is classes of cases in which such practice is bad. This rule is universal and unques- allowable. In the examination of the case tioned.
under consideration, we find nothing in the Second. Where the witness has been im evidence nor in the cross-examination of the peached by evidence of particular acts of defendant, which brings the case within any criminal or moral misconduct, either on of the adjudicated cases. The question as cross-examination or by record of conviction. to whether he signed the note sued on was While this rule is not universally adopted by the vital and controlling question. He testhe American courts, it is supported by the tified that he did not sign the note, that he following cases: Lewis v. State, 35 Ala. did not see the payee on the day the note 386; People v. Ah Fat, 48 Cal. 61; People purported to have been executed, and offered V. Amanacus, 50 Cal. 233; State v. Fruge, other corroborating evidence to support his 44 La. Ann. 105, 10 South, 621; Vernon v. position. The bank offered some expert eviTucker, 30 Md. 456; Russell y. Coffin, 8 dence upon the question of the identity of Pick. (Mass.) 143; Gertz v. Fitchburg R. Co., the signature, and attempted to prove that 137 Mass. 77, 50 Am. Rep. 28); People v. the defendant had made certain admissions Rector, 19 Wend. (N. Y.) 569; Carter v. Peo from which it might be inferred that he had ple, 2 Hill (N. Y.) 317; People v. Gay, 7 N. signed the note. There was nothing involvY. 378; Stacy v. Graham, 14 N. Y. 492; Webb ing moral turpitude of the defendant in the
. State, 29 Ohio St. 338; Wick v. Baldwin, transaction. If a crime had been committed. 51 Ohio St. 51, 36 N. E. 671; Warfield v. it was by the person who forged the note. Ry. Co., 104 Tenn. 74, J5 S. W. 301, 78 Am. It is not sufficient, to entitle one to corrobSt. Rep. 911; Smith v. Tate, 40 Tex. Cr. R. orate his evidence by general character, that 290, 50 S. W. 363; Luttrell v. State, 40 Tex. the facts to which he testifies are contraCr. R. 631, 61 S. W. 930; Paine v. Tildon, dicted or disproved by other witnesses. The 20 Vt. 554; George r. Pilcher, 28 Grat. (Va.) | testimony introduced by the defendant that 299, 26 Am. Rep. 330: Reynolds v. Railroad his general reputation for truth and veracity Co., 92 Va. 400, 23 S. E. 770; Clark v. State. was good was liable to have great weight 117 Ga. 2.34, 43 S. E. 8.73; Clark v. Bonel, with the jury and to have influenced their 29 Ind. 5.77; Warfield v. L. & X. Ry., 104 verdict. It was reversible error to admit Tenn. 74, 55 S. W'. 304, 78 Am. St. Rep. 911. such evidence under the circumstances pre
Third. Impeachment by evidence of cor sented by the evidence in the case. ruption on the part of the witness in con The judgment of the district court of nection with the case in which he appears. Pawnee county is reversed, at the costs of
Fourth. Ilipe:chment by evidence of con the defendant in error, and the cause retradictory or inconsistent statements, admit- mandel, with directions to grant a new trial. teil on cross-examination or shown by the All the Justices concur, except IIUIXER, J., testimony of other witnesses. l'pon this who tried the case below, not sitting, and last rule the authorities are in irreconcilable | IRWIN, J., absent.
(19 Okl, 316)
1901, the defendants filed their answer to the GLAZIER v. HENEYBUSS et al.
amended petition, alleging that the court was (Supreme Court of Oklahoma. Sept. 5, 1907.)
without jurisdiction and that the action
could have been revived in the name of the 1. LIMITATION OF ACTIONS-SUSPENSION.
administratrix within 30 days after the death A person cannot prevent the operation of the statute of limitations by delay in taking ac of the plaintiff, and that the action was, tion incumbent upon him.
therefore, barred by the statute of limita2. ABATEMENT AND REVIVAL DEATII OF tions. The administratrix filed a reply, adPARTY.
mitting all the facts set up in the answer, exSection 4621, Wilson's Rev. & Ann. St. 1903, fixing one year as the time within which cept that the cause could have been revived an action may be revived in the names of the in the name of the adninistratrix within 30 representatives or successors of the plaintiff, is
days after the death of the plaintiff, and that not a mere limitation upon a remedy, but conditions the very right to revive; and parties
said action was barred by the statute of limseeking to avail themselves of its benefits must itations. The issues thus joined were substrictly comply with its terms.
mitted to the court, a jury being waived, and 3. SAME_CONSENT OF DEFENDAYT.
judgment rendered in favor of the defendUnder section 4624. Wilson's Rev. & Ann.
ants for costs. The court found that the St. 1903, upon the death of the plaintiff an order to revive an action in the names of the
cause had not been revived within the time representatives or successors of a plaintiff shall allowed by law for the revival of an action not be made without the consent of the defend after the death of the plaintiff. From that ant after the expiration of one year from the time the order might have been first made. The
judgment the plaintiff in error prosecutes statute is not suspended until the appointment this appeal, and asks a reversal of the cause of the legal representatives, but begins to run upon the ground that the statute of limitaafter the expiration of a reasonable time from
tions begins to run, not from the death of the death of the plaintiff in which a legal representative might have been appointed.
the plaintiff, but from the date of the ap4. SAME.
pointment of the administratrix. Where the plaintiff in an action died on This question is presented to this court for the 10th day of April, 1902, and without the the first time, and necessitates a consideraconsent of the defendant the order of revival
tion and construction of sections 4620 and in the name of the administratrix was made on the 1st day of December, 1903, and thereafter
4624 of Wilson's Rev. & Ann. St. 1903. At upon the hearing it was found that the order common law the action abated upon the was not made within one year from the time
death of the party before trial or verdict, it might have been first made, held. that the action was barred by the statute, and section
and, if the cause of action was of the charac4624 warranted a dismissal of the action.
ter that did not survive, death put a final end (Syllabus by the Court.)
to the suit. If the cause was one that did Error from District Court, Noble County ;
survive, or could survive, plaintiff or his per
sonal representative was required to bring a before Justice Bayard T. IIainer.
new action. In order to obviate the necessiAction by Henry E. Glazier against T. H.
ty of bringing a new action, and to remedy Heneybuss and Martha Heneybuss. On the
that defect of the common law, requiring a death of plaintiff, Lydia E. Glazier, adminis
new action to be brought where the cause of tratrix, was substituted. Judgment for de
action survived, statutes have been adopted, fendants, and plaintiff brings error. Af
in England and in the various states of the firmed.
Union, providing that the representatives of Smith & Scott, for plaintiff in error. Doyle the deceased party, within limitations and & Cress, for defendants in error.
upon compliances with certain conditions,
might be made parties to the suit and action GARBER, J. This action to recover on proceed. Section 1620 of our statute protwo promissory notes was brought on the vides: “Upon the death of the plaintiff in 27th day of September, 1901, in the district an action, it may be revived in the names of court of Noble county, by Henry E. Glazier, his representatives, to whom his right has as plaintiff, against the defendants in error, passed. Where his right has passed to his defendants below. Henry E. Glazier died on personal representatives, the revivor shall be the 10th day of April, 1902. On May 12, 1902, in their names; where it has passed to his his death being suggested to the court, on ap heirs or devisees, who could support the acplication of his heirs leave was granted to sub tion if brought anew, the revivor may be in stitute his legal representatives as plaintiff. their names.” In this case, upon the death On March 27, 1903, upon the application of of the plaintiff, the right of action passed, plaintiff in error, and over the objection of not to his heirs, but to the administratrix of the defendants, the heirs were substituted as his estate. The subject-matter of the action plaintiffs. On December 1, 1903, the order was a part of the personal estate, and subsubstituting the heirs as plaintiffs was set ject to the payment of the debts of the deaside, upon the application of plaintiffs in er ceased, if judgment be secured and satisfied. ror, and over the objections and exceptions The attempted revival in the names of the of defendants in error an order was made heirs was, therefore, a nullity, and is of no reviving the action in the name of Lydia E. consequence in the determination of the quesGlazier; administratrix of the estate of Ilen tion in this case. ry E. Glazier, deceased. On January 28, This was virtually admitted by plaintiff in
error in filing a subsequent motion asking that
or that the death of the debtor operates to the order of revival in the names of the heirs suspend the statute of limitations indefinitebe set aside and the action be revived in the ly-citing Amy v. Watertown, 130 U. S. 320. name of the administratrix. IIence the real 9 Sup. Ct. 537, 32 L, Ed. 933, wherein it was battle in this case is waged over the construc said: “When a party knows that he has a tion of section 1024, fixing the time in which cause of action, it is his own fault if he does an order of substitution and revival might not avail himself of those means which the have been made in the name of the administra- law provides for prosecuting his claim, or intrix. The section reads as follows: "An or- į stitute such proceedings as the law regards der to revive an action. in the names of the rep sufficient to preserve it;" also the cases of resentatives or successors of a plaintiff may be Atchison, etc., Railroad Co. v. Burlingame made forthwith, but shall not be made with Twp., 36 Kan. 638, 14 Pac. 271, 59 Am. Rep. out the consent of the defendant after the ex 578, and Rork v. Douglas Co., 46 Kan. 17). 26 piration of one year from the time the order Pac. 393, as establishing the proposition that might have been made.
These "a person cannot prevent the operation of the sections of our statute were taken from the statute of limitations by delay in taking acKansas statute, and with their adoption came i tion incumbent upon him," and that "to perthe construction of the Supreme Court of that mit a long and indefinite postponement would state. The simple statement of the familiar tend to defeat the purpose of the statutes of and accepted rule of construction would or- limitations,
limitations, which are statutes of repose, dinarily be considered a final and satisfactory founded on sound public policy, and which disposition of the case, especially when the should be so construed as to advance the poliforeign state has repeatedly construed the cy they were designed to promote," and, folsection in question; but in this case a strenu- lowing these decisions, the court arrived at ous and heated controversy is waged over the the conclusion that the plaintiff's claim was question as to what construction has been barred by the statute, and said: “A reasonplaced upon that section of the statute by able time within which a creditor, having a the Supreme Court of that state, and numer claim against a decedent and wishing to esous authorities are cited in support of the re tablish the same against his estate, should spective sides of the controversy. As a pre make application for administration, would cautionary measure, before entering upon an be, under the statute, 50 days after the deinvestigation of the authorities, for perspicu cease of the intestate, or at least witbin a ity, we add the term "latest" to the statement reasonable time after the expiration of 50 of the general rule of construction, so as to days; but a creditor cannot, as in this case, read: By the adoption of the statute of a postpone the appointment for months and foreign state, we adopt the "latest" construc years, and then recover upon his claim. If tion of that statute at the time of its adop he can do so for several months, or several tion by the Supreme Court of that state. years, he can do so for any indefinite length
In the case of Bauserman v. Blunt, 147 U. of time, and then resort to administration S. 647, 13 Sup. Ct. 466, 37 L. Ed. 316, remov and establish his claim. This is certainly ed from the state court of Kansas to the Cir- not in accord with the policy of the statutes, cuit Court of the United States upon the au and is not a fair construction of our prior dethority of Toby v. Allen, 3 Kan. 399, Hanson cisions." V. Towle, 19 Kan. 273, and Nelson v. Herkel, In the case of Bauserman v. Blunt, supra, 30 Kan. 456, 2 Pac. 110, it was held that the in the Supreme Court of the United States operation of the statute was suspended until (147 U. S. 647, 13 Sup. Ct. 466, 37 L. F. 316). an administrator had been appointed, and, Mr. Justice Gray, delivering the opinion of while that case was pending on appeal in the court, in reviewing the various decisions the Supreme Court of the United States, the of the Supreme Court of the state of Kansas same question was presented to the Supreme upon this question, referring to the case of Court of the state of Kansas in the case of Bauserman v. Charlott, supra, in conclusion, Bausermany. Charlott, 46 Kan. 480, 26 Pac. said: "That decision was evidently deliber1051, and upon a careful examination and ately considered and carefully stated, with consideration of the question, and a review the purpose of finally putting at rest a ques. of the prior decisions of that court, it was tion on which some doubt had existed. It held that an action by another creditor is supported by satisfactory reasons, and is against the defendant was barred by the stat in accord with well-settled principles; and ute, because the plaintiff had unreasonably there is no previous adjudication of that delayed to apply for the appointment of an court to the contrary. In every point of administrator. Chief Justice Horton, who yiew, therefore, it should be accepted by had delivered the opinion in Nelson v. Her this court as conclusively settling that the opkel, supra, after referring to the cases cited eration of the statute of limitations of Kanabove as holding that "the death of the debt sas is suspended after the death of a debtor or operates to suspend the statute,” added : for 50 days only, during which the creditor "But this court has never said, when the could not apply for the appointment of an question was properly presented, that a cred administrator, or, at most, for a reasonable itor can indefinitely prolong the time of limi time after the expiration of the 30 days." tation by his own omission or refusal to act, As the proceedings to revive an action and
the proceedings to revive a judgment are pointed administratris, if you file your petisubstantially the same, and must correspond tion and give the required notice." There to the same formula, we cite the following were no other petitions filed for that apcases in support of the rule herein announc pointment: and her petition, when filed, was ed : Angell v. Martin, 24 Kan. 333; Rail not contested. way Company v. Smith, 40 Kan. 192, 19 Pac. It is argued, however, in support of the 636; Cunkle v. Railroad Co., 5+ Kan. 194, position that the statutes should not begin to 40 Pac. 181; Berkley v. Tootle, 62 Kan. 701, run until the appointment of a legal represen64 Pac. 620; Reaves y. Long, 63 Kan. 70), tative, that unscrupulous persons could pre66 Pac. 1030; Steinbach v. Jurphy, 70 Kan. vent the appointment by contest and appeal 487, 78 Pac. 823.
for over one year, and, although the action In the case at bar the order of revival in might involve the whole estate, it would be the name of the administratrix was not made forever barred. The plain language of the until 1 year, 7 months, and 21 days after the statute reads, "From the time when the oriler death of the plaintiff, and not until 1 year,
might have been first made," and is sufficient 6 months, and 19 days after the suggestion of answer to that argument. It is not for the the death of the plaintiff and leave to re courts to mitigate, by opinion, the harshness vive was granted in name of personal rep
of the law of limitations. It is their duty to resentatives. The answer and reply put in
declare the law as they find it. The limitaissue the question of fact, when the order of
tion of revivor is arbitrary, exacting, requirrevival "might have been first made.” The
ing diligence, good faith, prompt action, and plaintiff in error was a resident of Noble
he who seeks its benefits must be able to county, and upon the death of the deceased. show that he has complied with all its terms. April 10, 1902, she could have applied for
Hardship or inconvenience is insufficient. letters of administration, and, upon giving
Practical impossibility, alone, will satisfy. 19 30 days' notice, have been appointed admin
A. & E. Ency, of Law, 216. It was clearly istratrix of the estate of the deceased. On
the duty of the plaintiff in error to file her the 12th day of May, 1902, she suggested the
petition for letters of administration and secleath of the deceased, and upon giving 30
cure the appointment as administratrix of
the estate. Section 4021, construed in condays' notice from that date, had she filed her
nection with those statutes governing the appetition, she could have been appointed the legal representative and had the order of re
pointment of legal representatives, gave her
ample time, and during the diligent prosec'ulvival "made forthwith"; but, instead, the order of revival was not made until December
tion of the necessary steps to secure her ap
pointment the statute of limitations would be 1, 1903, or nearly 18 months after the time in which it "might have been made." With
suspended. Under the pleadings and evidence
in this case the trial court was warranted out the consent of the defendants, and no showing for the delay, can it be said that the
under section 1625 in dismissing the action. district court erred in finding that the order
We have carefully examined the authorities
cited by counsel which support the general of revival was not made within one year from
rule; but, having adopted the statutes of the the time it "might have been first made?"
state of Kansas with the construction placed There is either a limitation, or there is none. The Legislature has undoubtedly said that
thereon by the Supreme Court of that state,
The there is a limitation. If there is, in the lan
they are not applicable in this case.
(se of Steinbach v. Murphy et al., supra, guage of the statute, "the order of revival
decided by the Supreme Court of that state in upon the death of the plaintiff may be made
1904, clarifies any uncertainty that may apforthwith, but shall not be made without the
pear in the opinion of that court rendered in consent of the defendant after the expiration
1890 in the case of Rexroad et al. v. Johnson, of one year from the time the order might
Kan. App. 333, 45 Pac. 1008. have been first made." Without a revivor an
There being no other error assigned or action abates upon the death of the party,
presented, upon the authorities above cited, and without a statute there can be no revivor.
the judgment of the district court of Noble The language "shall not be made" is peremp
county, dismissing the action, is affirmed. torily prohibitive. It imposes an absolute prohibition upon the granting of the order
IIAIXER, J., who tried the case below, not after the lapse of one year after the time
sitting. All the other Justices concurring, exwhen it "might have been made." At the ex
(epit IRWIN, J., absent. piration of that time the right ceases to exist. It is true the order of revival could not have been inade until the appointment of the
(19 Okl. 1%) administratrix; but it was within the power
WILLOUGIIBY v. KELLY. of plaintiff in error to have had that appointment made. It was a condition precedent to (Supreme Court of Oklahoma. Sept. 4, 1907.) the order of revivor. The law required her APPEAL REVIEW EVIDENCE CORPORA to act. She offers no evidence explanatory of
Where, as in this case, the contents of a the delay. She knew of the death of the
bank stock book are relied upon to establish plaintiff'. The law said: “You may be ap the fact that at the date of the bank's failure
the defendant was a stockholder in the bank ! the back of the stock certificate, but the and liable as such, the contents of such book
blank for such assignment, printed on the are not conclusive in the absence of testimony showing the same to have been accurately and
stock found in the vault, was not signed. It correctly kept. And where the testimony as a is shown by the defendant's testimony that whole throws doubt upon the facts sought to be when he resigned as director he intended to established by the introduction of such evi
sever all connection with the bank, including dence, and presents proof from which a conclusion may be adversely drawn, the conclusions
a retransfer of the stock to Billingsley. Ile of the trial court adverse to the conclusions was not present at the directors' meeting sought to be established by such stock book will when his resignation was formally accepted not be disturbed.
in November, 1903, although the bank records [Ed. Note.For cases in point, see Cent. Dig. vol. 3, Appeal and Error, $$ 3935-3937.]
show him to have been present. That he
was in the city of Guthrie that day, and that (Syllabus by the Court.)
he went to the bank, but upon arriving there Error from District Court, Logan County;
was informed by the president that it was before Justice Bayard T. IIainer.
all over, and that one G. A. Nelson had been Action by J. A. Willoughby, receiver of the
elected in his place. The defendant at the Capitol National Bank of Guthrie, against E.
time asked the president of the bank if there P. Kelly. Judgment for defendant, and plain
was anything else for him to sign to show
he had no interest in the bank, and he was tiff brings error. Affirmed.
told that everything had been signed, and This action was brought by J. A. Willough that his stock had been transferred. Corby, receiver of the Capitol National Bank roborating this testimony of the defendant, of Guthrie, to recover from the defendant $1 the record shows that on February 27, 1904, 000, the amount of the levy of the Comp three months after the date upon which Keltroller of the Currency upon 10 shares of ly's resignation was accepted and his stock stock of the said bank belonging, as alleged, canceled, as stated by the president, Billingsto defendant. The assessment was made by ley, a special stockholders' meeting was callthe Comptroller May 9, 1901. The defendant ed and held. That at such meeting the ownadmitted the regularity and legality of the ers of 900 shares were present, as follows: levy, but denied liability thereunder. From
A. G. Brower.,
490 shares the proceedings had upon the trial of the case
C. R. Brooks.
10 in April, 1905, it appeared from the stock C'has. E. Billingsley.
510 book of the bank offered in evidence that
G. A. Nelson.
10 J. C. Robb...
960 the defendant, Kelly, was the owner of 10 shares of the capital stock of the bank from Absent stockholders: and after January 31, 1902. The defendant, T. A. Veal......
30 J. G. Edmonson
40 on becoming the owner of such stock, was elected a director of the bank, which position
1,000 -1,000 he filled for about a year, when he tendered his resignation in writing, which was accept
And at this meeting a 33 per cent. assessed in November, 1903, at which date he claim.
ment was levied upon all the stock of the ed his entire connection with the bank as di
bank. rector and stockholder ceased, and therefore From the testimony the trial .court found denies any liability for the assessment.
the issues in favor of the defendant, and the It appears from the record that the defend. plaintiff brings the case to this court alleging ant, Kelly, was solicited by the president of
error. Other necessary facts are set out in the bank to become a director of the corpora
the opinion. tion, and that he consented, and in order to Flynn & Ames and R. A. Kleinschmidt, for qualify him for such position, the president of plaintiff in error. Strang, Devereux & Hildthe bank, Billingsley, caused the transfer of 10 reth and Lawrence & Huston, for defendant shares of his stock from his name to that of in error. the defendant, and thereafter the defendant qualified as a director, affirming in his oath GILLETTE, J. (after stating the facts as of office that he was the owner of 10 shares above). It is manifest that the only question of stock in the bank. It appears, however, to be determined in this case is as to whether that the defendant was not in fact the real or not the defendant was a stockholder in owner of the stock, and the same was never the Capitol Xational Bank at the time of its delivered to him. Stock certificates were is failure, April 4, 1904. From the facts stated, sued in his name, but the same were not sign it must be conceded that he never was at any ed by the president or attested by the cor time a stockholder of the bank in good faith. porate seal. When thus partially issued, This fact, however, does not relieve him from they were placed in the vault of the bank, liability to the creditors of the bank to the and were there found when the receiver took extent that the law makes stockholders liatcharge, and no dividends thereon were ever ble in case of the bank's failure, for he could paid to defendant. The defendant testified not hold himself out as a stockholder, or that when the stock was issued in his name knowingly permit the bank so to do, without he immediately reassigned it, by signing a assuming complete responsibility to the full blank for the assignment thereof printed on extent that the law fixes liability upon stock