BURCH, J. The action in the district | 533, 38 L. R. A. (N. S.) 568, the presumption court was one of ejectment, brought by the that no legal impediment to the defendant's brother and sister, heirs of George Haywood, second marriage existed was not overcome. deceased, against Melinda Nichols, who It was not necessary that the district court claimed to have taken title by virtue of being should rely on the presumption which the the surviving spouse of George Haywood. law, out of considerations of morality and The decision turned on whether or not the public policy, raises. The defendant's union defendant was married to George Haywood with Haywood appears to have been entered at the time of his death. Judgment was ren- into in good faith, and continued to be gendered against the plaintiffs, and they appeal. uinely matrimonial in every sense of the In 1881, the defendant married Richard term. Persistence of the relation after the Pool at Ft. Madison, Iowa. Afterwards Rich- defendant's disability was removed made ard Pool was incarcerated in the Iowa state them husband and wife under the common penitentiary, from which he was released in law. Schuchart v. Schuchart, 61 Kan. 597, the year 1885. Directly following his release, 60 Pac. 311, 50 L. R. A. 180, 78 Am. St. Rep. he commenced an action for divorce in the 342. district court of Lee county, Iowa, against the The plaintiffs say no question of a commondefendant, who was then residing in Burling-law marriage was involved. The question ton, Iowa. She signed some papers which was, whether or not the defendant was the she supposed entitled him to a divorce. The wife of George Haywood at the time of his action was dismissed on January 5, 1886. death, and any form of marriage which the The records of Lee county, Iowa, disclose no law recognizes would defeat the plaintiffs' other divorce suit between the parties. Pool claim. died in Lee county, Iowa, on October 31. 1904. The defendant did not see Pool after he was taken to the penitentiary and had no correspondence with him. She was told that Pool had a divorce, that he married again, and that he died in 1889. In 1890 she was married to George Haywood, in Lafayette county, Mo., according to the formalities prescribed by the laws of that state. She and Haywood lived and worked together as husband and wife until Haywood's death in 1906, and by their joint efforts acquired the property in controversy. They had no children. There was soine conflict in portions of the evidence. The court found that the defendant was the true and lawful wife of George Haywood at the time of his death. There was a presumption in favor of the validity of the defendant's second marriage which has been described as the strongest known to the law. Shepard v. Carter, 86 Kan. 125, 119 Pac. 533, 38 L. R. A. (N. S.) 568. Although it involved proving a negative, the plaintiffs were required to establish the fact that the marriage with Pool had not been legally dissolved. The proof tended The judgment of the district court is affirmed. All the Justices concurring. (99 Kan. 131) McCORKLE v. RED STAR MILL & ELEVATOR CO. (No. 20476.) (Supreme Court of Kansas. Nov. 11, 1916.) (Syllabus by the Court.) 1. MASTER AND SERVANT 408-WORKMEN'S COMPENSATION ACT CONTINUANCE GROUNDS. On the trial of an action under the Work men's Compensation Law, it is not error to re- [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 408.] 2. APPEAL AND ERROR 1001(1)-REVIEWQUESTIONS OF FACT-VERDICT. Rule followed that verdicts based on sufficient evidence will not be disturbed. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3928-3933; Dec. Dig. 1001(1).] 3. MASTER AND SERVANT 385(20)—WORKMEN'S COMPENSATION ACT-PROCEEDINGS JUDGMENT. Rule followed that, in compensation cases, the rendition of judgment in a lump sum is within the discretion of the trial court. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 385(20).] somewhat in that direction. Pool lived in Lee county, Iowa, in 1885, died there in 1904, and the only divorce action appearing on the court records of that county was dismissed. There was no proof, however, that Pool continued to reside in Lee county from 1885 to 1904, and it will not be presumed that he did so, against the presumption that the defendant's second marriage was legal. The bringing of the action which Pool instituted when he walked out of the penitentiary into the divorce court shows a purpose to dissolve his relation to the defendant, who had moved away. The dismissal of the action merely showed that that action failed. There- T. A. Noftzger and George Gardner, both fore, within the principles stated in the case of Wichita, for appellant. Robert C. Foulof Shepard v. Carter, 86 Kan. 125, 119 Pac.ston, of Wichita, for appellee. Appeal from District Court, Sedgwick Action by Earl McCorkle against the Red For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes MARSHALL, J. The plaintiff recovered | trial, it must have been submitted to the judgment against the defendant for $1,400, jury, and must have been determined adunder the Workmen's Compensation Law versely to the claims of the defendant. The (Laws 1911, c. 218, as amended by Laws jury determined this question by its verdict, 1913, c. 216), and the defendant appeals. and that verdict is conclusive in this court. [3] 3. The defendant requested the court, on the verdict returned by the jury, to make an award of weekly payments, subject to modification, review, redemption, or cancellation. This was refused, and a lump sum judgment rendered. This question has been before this court on a number of occasions, and has been determined adversely to the defendant's contention; and appeals have been dismissed where that was the only question presented. Gorrell v. Battelle, 93 Kan. 370, 144 Pac. 244; Cain v. Zinc Co., 94 Kan. 679, 146 Pac. 1165, 148 Pac. 251; Rob [1] 1. The plaintiff's knee was injured at the defendant's inill on September 7, 1914, and he was taken from there to a hospital, where he remained until September 15th. In November defendant offered to pay plaintiff $65 compensation, the plaintiff to pay for an operation on his injured knee. The offer was not accepted. This action was commenced December 16, 1914. The defendant's answer, which was filed October 7, 1915, alleged that the plaintiff's injury was of 4 weeks' duration, and that he had long since recovered threfrom. On October 23, 1915, the plaintiff filed a reply, consisting of a generalerts v. Packing Co., 95 Kan. 723, 149 Pac. denial. The plaintiff's injuries were examined by a number of physicians, by some before this action was commenced, and by others afterward. On October 20, 1915, Dr. Updegraff performed an operation on the plaintiff's knee and removed a loose piece of bone. The cause was called for trial on the 26th day of October, 1915. The defendant then asked that the trial be postponed for a reasonable length of time so that it could be ascertained whether the injury to the plaintiff's knee was temporary or permanent, and offered to show by Dr. Updegraff that sutlicient time had not elapsed for him to ascertain that fact. The court refused a continuance. This is assigned as error. The defendant was advised of all the facts necessary for it to know in order to prepare 413; McCracken v. Bridge Co., 96 Kan. 353, 150 Pac. $32; Halverhout v. Milling Co., 97 Kan. 484, 155 Pac. 916. The judgment is affirmed. tices concurring. SLIMMER v. RICE et al. (Supreme Court of Kansas. All the Jus (99 Kan. 99, (No. 20388.) Nov. 11, 1916.) (Syllabus by the Court.) action for failure to amend after a demurrer Error, Cent. Dig. § 1884; Dec. Dig. Appeal from District Court, Phillips Action by D. W. Slimmer against Dennis D. Rice and others. From judgment for defendants, plaintiff appeals. Dismissed. Woodburn & Woodburn, of Holton, for appellant. R. Frank Stinson, of Phillipsburg, for appellees. its defense. At the time the case was called for trial, the action had been pending for a little more than one year. The answer had been filed almost 20 days. The reply added nothing new to the petition or the answer. The defendant knew of the plaintiff's injury and knew something of the extent of that injury. It was not necessary to postpone the trial until it could be definitely known whether or not the plaintiff's injury was temporary or permanent. It cannot be said that the court abused its discretion in refusing the defendant's application for a continuance. [2] 2. The defendant contends that there BURCH, J. The action was one for damis a grave question as to whether the injury ages for breach of the covenants contained in to the plaintiff's knee was caused by the ac- a warranty deed. A demurrer was sustaincident at the mill or by the plaintiff's slip-ed to the petition on January 15, 1915. Leave ping and falling while he was walking along the street in November, 1914. There was no question about the plaintiff's being injured at the defendant's mill. Neither was there any question about that injury extending over some period of time. Some evidence tended to show that all of the plaintiff's injury was caused by the accident at the mill, although there was evidence which tended to show that the plaintiff might have been injured when he fell on the street. The instructions to the jury were not set out in the abstract. If this question was a disputed one at the was given to amend, and the cause was continued to the next term. At the next term, and on April 23, 1915, the action was dismissed; no amendment having been filed. On September 7, 1915, the plaintiff appealed from the Judgment of April 23, 1915. Error is assigned on the ruling sustaining the demurrer. The assignment of error cannot be considered, because the appeal was not perfected within six months from the date of the rendition of the order sustaining the demurrer. Section 565 of the Code (Gen. St. 1909, § 6160), December 28, 1915, supports the conclusions reached by this court. In Boyce v. Western Union Telegraph Co. (Va.) 89 S. E. 106, decided June 8, 1916, a case arising over an interstate telegram containing substantially the same conditions as the telegram in the present cases, the Supreme Court of Virginia said: provides that this court may reverse an or- "We, are, however, of opinion that the weight of authority and the better reason sustain the conclusion we have reached that the defendant company is entitled to the protection afforded it by the stipulation in question, and is only liable to the plaintiff for the cost of transmitting the unrepeated message sent by him." (89 S. E. p. 109.) See, also, Gardner v. Western Union Telegraph Co., 231 Fed. 405, 145 C. C. A. 399, decided February 28, 1916. We adhere to and confirm our former opin- (99 Kan. 52) BANK, Intervener). (No. 20257.)* (Supreme Court of Kansas. Nov. 11, 1916.) (Syllabus by the Court.) 1. CHATTEL MORTGAGES 49(1)-REQUISITES -DESCRIPTION OF PROPERTY. That case involved a ruling on a demurrer to evidence. The following cases, involv-EHRKE v. TUCKER et al. (ALLEN STATE ing rulings on demurrers to pleadings, support the quoted statement: Blackwood v. Shaffer, 44 Kan. 273, 24 Pac. 423; Corum v. Hubbard, 69 Kan. 608, 77 Pac. 530; Railway Co. v. Murphy, 75 Kan. 707, 90 Pac. 290; Hawkins v. Brown, 78 Kan. 284, 97 Pac. 479. These decisions were rendered under the statute as it stood before the amend-gage shall be so definite that third parties can ment to section 572 took effect. The change in the length of time within which an appeal may be taken does not, of course, affect the principle. No error in the judgment of dismissal, considered alore, is urged. The appeal is dismissed. All the Justices concurring. (99 Kan. 7) BAILEY v. WESTERN UNION TELE- It is not necessary that the description of cattle intended to be included in a chattel mort enough if the description and the inquiries sugidentify the property from that alone. It is gested by it furnish a reasonable basis for identification; but the suggestions which indicate the line of inquiry must be taken from the mortgage itself and not rest alone in the mind of the mortgagor or mortgagee. [Ed. Note.-For other cases, see Chattel Mortgages, Cent. Dig. §§ 90, 92; Dec. Dig. ~49(1).] 2. CHATTEL MORTGAGES 49(2)—REQUISITES -DESCRIPTION OF PROPERTY. In the present case it is held that the description of certain cattle in a mortgage, together with inquiries suggested by it, did not fairly lead to the identification of the cattle in con troversy, and that as the plaintiff failed to produce substantial evidence in support of his claim, that the cattle in controversy were included in the mortgage, no error was committed in direct (Nos. 19815, 20078.) (Supreme Court of Kansas. Nov. 11, 1916.) Appeal from District Court, Shawnee County. On rehearing. Former decision confirmed.ing a verdict in favor of defendants. [Ed. Note.-For other cases, see Chattel MortFor former opinion, see 97 Kan. 619, 156 gages, Cent. Dig. § 91; Dec. Dig. Pac. 716. 49(2).] Appeal from District Court, Franklin County. Charles Blood Smith and Samuel Barnum, both of Topeka, and George H. Fearons, of Action by Fred Ehrke against E. M. TuckNew York City, for appellant. E. D. Mc-er and another, defendants, and the Allen Keever, of Topeka, for appellee. State Bank, intervener. From a judgment for defendants and intervener, plaintiff appeals. Affirmed. MARSHALL, J. An opinion in these actions is reported in 97 Kan. 619, 156 Pac. Piatt & Marks, of Kansas City, Mo., and 716. A rehearing was granted. Both F. M. Harris, of Ottawa, for appellant. sides have again argued the cause orally, B. Pleasant, of Ottawa, for appellees. W. was and have filed additional briefs and cited more authorities. These and other authori- JOHNSTON, C. J. This action ties have been examined. We are satisfied brought to recover the possession of 69 head with the conclusions reached in the original of cattle. In the spring of 1913, J. A. Fager opinion. Haskell Implement & Seed Co. v. bought cattle from the Knorpp Cattle Loan Postal Telegraph-Cable Co. (Me.) 96 Atl. 219, | Company of Kansas City, and to secure decided by the Supreme Court of Maine on notes given in payment of the cattle he exFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Rehearing denied December 19, 1916. ecuted two chattel mortgages, one upon 223 head of Panhandle yearlings branded M on the left hip, and the other upon 100 head of native Kansas yearlings, mostly dehorned and branded 0 on the left hip, and 30 head of red native Kansas yearlings marked with a slash on the left hip. Before the notes became due they were assigned by the cattle company to the plaintiff, Fred Ehrke, and, as the notes were not paid when they became due, Ehrke took a new note and mortgage to himself, in which the property was described as follows: "Two hundred twenty-three (223) head of coming two year old native Panhandle steers and heifers all branded M on left side and 9 on left thigh, also one hundred (100) head of coming two year old native Kansas steers, branded thus, 0 on right hip; the above-described cattle are now on the premises of the party of the first part two miles north of St. Paul, Neosho county, Kansas, where they are to be kept until the expiration of this instrument." Fager again applied for an extension, which Ehrke granted, and in June, 1914, a new note and mortgage were executed and filed, but before the execution of that mortgage and in February, 1914, E. M. Tucker and Harry Tucker, without personal knowledge of the existing mortgage, purchased from Fager 70 head of two year old native Kansas steers, and took them to their premises in Osage county, and no question was raised as to the validity of the transfer until the fall of 1914. About that time Fager disappeared, and Ehrke, learning of the sale of cattle to the Tuckers, claimed that the Tucker cattle were a part of those included in his mortgage, and shortly afterwards brought this action of replevin. The Tuckers defended upon the ground that the cattle purchased by them were not a part of those described in the plaintiff's mortgage, and, further, that the mortgage in existence when the purchase was made had been released. When the evidence was introduced the court ruled that the plaintiff had failed to show a right of recovery, and directed a verdict in favor of the defendant. The question submitted here is: Can the mortgage under which the plaintiff claimed be applied to the cattle in controversy? It is not claimed that any of them are included in those described in the mortgage as 223 head of Panhandles, nor the 30 head of natives branded on the left hip with a slash, but it is contended that they are a part of those described in the mortgage as two year old native steers branded 0 on right hip. The evidence does not show that any of the Tucker cattle were branded in that way, and no brand like it was found upon them. The cattle were purchased from Fager, who executed the mortgage, but it appears that he was buying and selling cattle from time to time and had about 400 head of cattle when the sale was made to the defendants. The cattle were not kept on his gage, but were kept at a number of places where feed could be obtained for them, in the region roundabout his place. Plaintiff had not seen the cattle prior to the sale made to the defendants, and the mortgage which was taken by plaintiff about four months after the Tuckers had purchased their cattle recited that the 100 native Kansas steers branded ́0 on right hip were still on Fager's premises two miles north of St. Paul, where they were to be kept until the expiration of the mortgage. It appears that in January, 1914, plaintiff sent his agent Stotts to Neosho county to inspect the mortgaged cattle, and at that time Fager pointed out certain red, roan, and brindle cattle as those included in plaintiff's mortgage, but Stotts did not find any of them branded 0 on the right hip. He did not make a close or careful examination, as he says that he did not look for or pay particular attention to brands, the principal identifying mark used in describing the cattle in the mortgage. While he stated that he saw all of the mortgaged cattle it appears that he came to that conclusion because Fager said the cattle shown him were the mortgaged cattle. At that time Fager had about 400 head of cattle and many more than 70 head of native cattle of the colors and age of those described in the mortgage. It appears that his cattle were held in bunches at a half a dozen or more places, some of which were 20 miles away from the place named in the mortgage. After plaintiff learned that cattle had been sold to Tucker he sent an expert to examine the Tucker cattle, but the expert was unable to find a brand on them that corresponded at all with the one described in the mortgage. John Fager, a son of the mortgagor, testified that the Tuckers got their cattle at the farms of the Showalters near St. Paul, and that their cattle were there when Stotts inspected them, and, further, that the cattle bought by the Tuckers were obtained from among those examined by Stotts. In that connection. however, he testified that most of the cattle were two year old natives which his father bought from a man named Stinger in the spring of 1913. [1, 2] It devolved upon the plaintiff, of course, to prove that the cattle in Tucker's possession were those described in the mortgage. To recover he must produce substantial evidence tending to show that fact, and. if he did so, the case should have been submitted to the jury. The defendants are presumed to have had knowledge of the contents of the chattel mortgage, and if by the description there given, aided by inquiries which it would naturally suggest, the cattle could have been identified, the description would have been sufficient to bind them. Waggoner v. Oursler, 54 Kan. 141, 37 Pac. 973; Rudolph v. Commission Co.. 76 Kan. 789, 92 Pac. 1103. A partial misdescription does not invalidate the mortgage (King v. [Ed. Note.-For other cases, see Pleading, Cent. Dig. § 880; Dec. Dig. 292.] 2. COUNTIES 72-OFFICERS-RIGHT TO COM PENSATION. Without an order from the board of county commissioners, or a contract with that board, a county officer cannot charge the county for services voluntarily performed by him which his predecessors in office had neglected to perform, and which were not within the ordinary scope of his own official duties. [Ed. Note.-For other cases, see Counties, Cent. Dig. § 116; Dec. Dig. 72.] county for the cost of articles which he has pur- The plaintiff, while register of deeds, purchased a typewriter for the use of his office without the sanction of the board of county commissioners. Held, that he cannot charge the county for the cost of the typewriter. mining whether a third party, aided by in-rectness of an account duly verified shall be takquiries suggested by the mortgage, could have en as true unless denied under oath, the failure to deny the account under oath admits only its identified the property, the whole description accuracy, and not its legality. is to be taken into consideration. The suggestion which indicates the line of inquiry must come from the mortgage itself, and cannot rest alone in the minds of the mortgagor and mortgagee. If the defendants had had actual knowledge of the mortgage executed by Fager and had made inquiry they would have looked first for the principal mark of identification, viz. the brand 0, and, not finding it on any of the cattle purchased, would have been reasonably well assured that the cattle which they purchased were 3. COUNTIES 73-OFFICERS EXPENSES. not included in the mortgage. This assur- A county officer has no claim against the ance would have been strengthened when they noted that the cattle they had purchased were not kept at the place designated in the mortgage. It is true that the cattle were purchased from Fager who had executed the mortgage, but he had many more cattle of the color and age of those described in the mortgage. The descriptions therefore of color, age, and location in the mortgage did not furnish a basis for identification. If the Tucker cattle had been the only native Kansas two year old steers of the class named in the possession of Fager an inquiry may have led to identification, but subsequent purchasers are not required to pursue inquiries where, as here, the entire description led in a different direction and indicated so clearly that the cattle in question were not intended to be included in the mortgage. The law contemplates that mortgages, to be valid, shall be sufficiently definite in description so as to give notice to subsequent purchasers and mortgagees and afford them protection against imposition. One who seeks to obtain and hold a mortgage lien on cattle must, for the protection of third parties, give a more definite description of them than was done in this instance. In directing a verdict the evidence in favor of the plaintiff, with every reasonable inference that can be drawn from it, must be taken as true, and it is said that McTaggart, all of Belleville, for appellee. some evidence tends to establish identity. Verdicts cannot be based on a mere scintilla of evidence, and unless substantial proof is offered in support of the claims of the plaintiff a verdict against him may be directed. In this case the trial court determined that no substantial evidence was produced that would furnish a basis for a verdict, and its judgment must be affirmed. All the Justices concurring. (99 Kan. 49) HILL v. BOARD OF COM'RS OF REPUB- [Ed. Note. For other cases, see Register of Deeds, Cent. Dig. § 8; Dec. Dig. 3.] 5. REGISTER OF DEEDS 3-RIGHT TO COM PENSATION. The plaintiff, while register of deeds in struction, several thousand old chattel mortgages 1911-1912, indexed, preparatory to their dewhich had served their purpose, and which had accumulated in his office since 1888. Held that, in the absence of an order from the county board or a contract with the board for such services, he has no legal claim against the county therefor. [Ed. Note. For other cases, see Register of Deeds, Cent. Dig. § 8; Dec. Dig. Appeal from District Court, County. 3.] Republic Action by M. L. Hill against the Board of County Commissioners of the County of Republic. From a judgment for defendant, plaintiff appeals. Affirmed. N. J. Ward, of Belleville, for appellant. H. H. Van Natta, W. D. Vance, and R. E. DAWSON, J. The plaintiff was the register of deeds of Republic county for the term included in the years 1911 and 1912. During that time he purchased a typewriter for the use of his office. He also found that several thousand old chattel mortgages which had been recorded in his office, and which had accumulated since 1888, had not been indexed and destroyed by his predecessors in office as provided by statute. He indexed some 1,200 chattel mortgages, preparatory to their destruction, and presented a bill against the county for $36 for this service. This was (Supreme Court of Kansas. Nov. 11, 1916.) allowed and paid. The plaintiff also indexed, (Syllabus by the Court.) 1. PLEADING 292- ANSWER-ADMISSIONS -FAILURE TO DENY. Under section 110 of the Civil Code (Gen. St. 1909, § 5703), which provides that the cor preparatory to their destruction, all the other old chattel mortgages on file, some 7,805 in number, and presented a bill against the county for this service, and likewise for the price of the typewriter. This bill was re For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |