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1898. THE ADVOCATE AND NEWS. qualified by statute to take and hold for the purpose of transmitting the euccea Bion. All parties must take through her or not at all, because the will devised the estate to none of them, and the statuto passes It directly to none of them, but passes It only directly through her to them. TheBe conclusions being reached the case la free from difficulty. The amendment of 1891 to the statute of descents and distributions, General Stat utes 1S!7, chapter 109, section 18, which took effect In the lifetime of Hosetta Shellhouse Saxton. excludes strangers to the blood from line of descent. The constitution ality of this statute in respect to the forms of Its enactment has been disputed, but has recently been affirmed. Ilomrlghausen vs Knoche, et al. This excludes all par ties represented by O. In the quoted Il lustration from the brief of plaintiff In error, and confines the succession to the parties represented by E. In the Illustrated case. The Judgment of the court below Is, therefore, alllrmed. A true copy. Attest: Seal. JNO. MARTIN, Clerk Supreme Court. No. 10073. Janla, Saunders & Co., et al., vs. The First National Bank of Ilorton, et al. Error from Brown County. DISMISSED. Opinion. Per Curiam. This was a proceeding to foreclose a chattel mortgage and to adjust and de termine other mortgage and attachment liens. The Jurisdiction of the court Is chal lenged because of the absence of parties who have not been properly brought Into this court; among them are Craig Broth ers, the mortgagors and attachment debt ors against whom Judgments were ob tained and liens established; the Bank of Ilorton, a mortgagee which was given a second Hen; as well as several other par ties who were In the trial court and who might be affected by the disposition of the case. Some of those who were brought into this court have since died, and no proceedings to revive or substitute were had within the time allowed by law. The Craig Brothers, who appeared In the court below, and whose property Is being sub jected and appropriated by the proceed ings, are directly affected by the Judg ments given and are clearly necessary par ties to this proceeding. They are Interested In the Judgments awarded against them and in the disposition of the property which they undertook to use in the pay ment of creditors that they had a right to prefer. Some of the parties complaining here, like Herman W. Craig and Stern, Lauer, Shohl & Co., are asking for addi tional Judgments against them. There was an attack upon the mortgages in the court below, and also In the petitions In error. The Swofford Brothers Dry Goods Com pany and others complain of the findings giving the Bank of Horton, which Is not here, a lien; and they also complain of the liens and Judgments awarded to others not parties to this proceeding. If all the mortgages held superior to the attach ment liens were defeated, the absence of some of the smaller claimants who are not present might seriously affect any future proceedings In the case. We are clear that necessary parties are absent, and while there are other serious objections to the consideration of the case, we think It must bo dismissed for that reason. A true copy. Attest: Seal. JNO. MARTIN, Clerk Supreme Court. No. 10314. Charles Johns vs. Walter B. Jordan, et al. Error from Washington County. AFFIRMED. Opinion. Per Curiam. This was nn action In the nature of a creditor's bill, brought by plaintiff In er ror against defendants In error. Objection to the introduction of evidence under the petition, because of Its insufficiency In statement of facts was made and sus tained. Judgment was, thereupon, ordered In defendants' favor. The plaintiff prose cutes error to this court. The petition alleges that certain lands were purchased by William R. Layering from the State of Kansas, but had been erroneously patented to his son, F. M. Layering; that F. M. Layering had mort gaged them, together with a large amount of personal property, to one F. A. Head to secure $48,000; that the mortgages and accompanying notes were without consid eration, and only for the accommodation of Head: that Head had assigned them to the principal defendant in error, Walter B. Jordan, who took them with full knowl edge of the facts; that Jordan had fore closed upon, the chattel property without conforming to the laws of Wyoming, where such property was located, and had bid it In at a price much below Its real value; that had he taken It at a fair value It would have satisfied the debt of $48,000 In full without resprt to the real estate In Kansas; that he foreclosed the mort gage upon the land In an action In which he joined, as defendants, W. R. Laverlng, the equitable owner, and the administra tor and heirs of F. M. Laverlng, who had in the meantime died; that such defend ants made default, whereupon Judgment of foreclosure was taken, the land sold and bid In by the plaintiff in the suit, Jordan, one of the defendants In error here. , It is not alleged in the petition or cred itor's bill that Jordan , the plaintiff in the foreclosure suit, knew that the mort- faged land belonged in equity to W. R. avering instead of F. M. Layering, nor is it alleged that W. R. Laverlng fraudu lently colluded with Jordan to put his land In Jordan's name. The only allegation of fraud made by plaintiff in error is that Jordan In the foreclosure of the real es tate mortgage wrongfully deceived the court, by alleging a balance of debt due to htm, when, in fact, he had taken pos session of enough personal property under the chattel mortgage to satisfy the whole claim. This is not Bufflclent. A litigant may not thus unsettle business transac tions, which his debtor has engaged In with others, or to which he has given as sent, upon the mere statement that such debtor has been wronged out of his prop erty, or has Improvldently wasted It, or negligently allowed It to pass Into the hands of others. The petition stated no cause of action. The objection to the re ception of evidence under it was rightfully sustained, and the Judgment of the court below will be alllrmed. A true copy. Attest: Seal. JNO. MARTIN. Clerk Supreme Court No. 103G6. Fred P. Nash, vs. W. Denton, et al. Error from Leavenworth County. REVERSED. Opinion. Per Curiam. We are unable to say that the petition In this case Is so defective that a Judgment based on It is void, or erroneous when based on testimony, offered at a trial had In the absence of the defendant. Tho pe tition, however, is very defective in Its averments, and the motion to make It more definite and certain, which the court over ruled, should have been sustained. It was not sufficient to apprise the defendant fairly of the claims against him. Tho copy of the account attached as an exhibit In dicates nothing In most of the Items thereof but dates and sums of money, though the averments of the petition are that the transactions generally represent grain sold and delivered. But there is nothing to Indicate quantities or kinds of grain, or which items refer to grain, and which to anything else, with some few ex ceptions. The averments . with reference to the Item of $1,650, loss on rye, as against a motion to make definite and certain are wholly Insufficient. The defendant was en titled to a definite statement in the peti tion as to what contract was claimed and how the liability accrued. While counsel for the defendant Nash failed to use the highest degree of dili gence, we think under all the facts stated in his affidavit, the court should have Bet aside the judgment and granted a new trial. The Information obtained by him from the Clerk's office, and the failure of the Clerk to send him a copy of the cal endar quite naturally led him to believe that the case had not been assigned for trial. Plaintiff's counsel well knew that Nash denied all liability on the account. In the exercise of a sound discretion the court ought to have allowed the defendant a chance to be heard. The uncontradicted statements in the affidavit of Crans, also show that there was a credit of $400 re ceived by the plaintiffs after the com mencement of the suit from Wilcox, which the plaintiffs failed to allow. It was misconduct on their part to take judgment for the whole amount claimed In the original petition, when only a less sum was actually due them. The judgment Is reversed, and the causo remanded with directions to set aside the Judgment and to sustain the motion to re quire the plaintiffs to make their petition more definite and certain. A true copy. Attest: Seal. JNO. MARTIN, Clerk Supreme Court No. 10317. Deneblem Brothers, vs. The Wlngate, Stone, Wells Mercantile Company. Error from Bourbon County. DISMISSED. Opinion. Per Curiam. This was a garnishment proceeding In stituted by the defendant in error against its debtors Greenburg and Berkson, and against plaintiffs In error, the Citizen's National Bank of Fort Scott, and George M. Safford. The plaintiffs in error were not served with garnishment summons. Nor did they file answer to the garnish ment affidavit, although named In It as garnishees. They did, however, appear by counsel as though they had been for mally garnished, and offered evidence In support -of the validity of their claim to a stock of goods belonging to the debtors, Greenburg and Berkson, which was the subject of controversy. Stern, Lauer, Scholl & Co., were not named as garnishees In any of the garnishment papers, but they also appeared and offered evidence in support of their claim to the stock of goods. Tho court gave Judgment awarding the Citi zen's National Bank the first lien. Stern. Lauer, Scholl & Co., a second lien, and the defendants in error a third Hen on the goods, and held the claim of plaintiffs in error to be fraudulent and void. It ap peared upon the trial that other creditors of Greenburg and Berkson, who had neither been made parties to the garnish ment proceedings, nor had Intervened therein, were, nevertheless, entitled to liens upon the stock of goods in question. In the interest of these creditors one W. P. Dilworth was appointed receiver to take charge of the goods remaining after the claims of the other Hen holders were sat isfied. From the finding of the court that the claim of the plaintiffs in error was fraud ulent and void, and its judgment refusing them a lien upon the Btock of goods they prosecute error to this court The only de fendant to the proceedings in error is the Wlngate, Stone, Wells Mercantile Co., the creditor which Instituted the garnishment proceedings. Greenburg and Berkson, the original judgment defendants, are not made parties, nor is the Citizen's National Bank, nor Stern, Lauer, Scholl ft Co., nor Dilworth the receiver, nor the parties whom he represents. The proceedings In error must be dis missed. Beyond question Dilworth tho re ceiver, and Greenburg and Berkson, the debtors, must be made parties; so also should the Citizen's National Bank, ami Stern, Lauer, Scholl & Co., as we think. They appear to claim adverse Interests. They have adverse Interests unless the plaintiffs In error admit the superiority of their Hens. Possibly this may be done, even after tho case has been brought hero for review, but unless explicitly done at some time, the question of right as be tween plaintiffs in error and those par ties would be for litigation In the event of a reversal. Unless it could bo held that tho failure to make the persons named parties to the proceedings in this court was a concession of their superior rights In the controversy, in the event of reversal such controversy could be made one solely be tween the plaintiffs and the defendants In error as to which shall have the third Hen. Should tho plaintiffs In error be al lowed a third Hen It would practically ab KOrb all the goods, because the value of tho goods after payment of the first two Hens Is only about $5,000, and the claim of plain tiffs in error is over $4,000. This would leave about $1,000 for Dilworth the receiver, lens the claim of the defend ants in error. If, on the other hand, the defendant In error should be allowed the priority already found In Its faveor, amounting to about $400, there would bo substantially 4.C0O left for Dilworth the re ceiver. Hence, ho is most vitally Inter ested; so also are the debtors: Greenburg and Berkson. They have a right to con test with plaintiffs In error over tho ques tion of the Hen claimed by them. Tho pro ceeding In error is, therefore, dismissed. A truo copy. Attest: JNO. MARTIN. Seal. Clerk Supreme Court. No. 10034. The State of Kansas on relation of L. C. Boyle, Attorney General, vs. The Mutual Life Insurance Company of New York. Original Proceedings In Quo Warranto. JUDGMENT FOR PLAINTIFF. Opinion. Per Curiam. On the 21st of August, 1S97 the Attorney General filed a petition in this court alleg ing that the defendant was an Insurance companv Incorporated under the laws of the State of New York; that it had been transacting business as an Insurance com pany In this State since the last of March, 1807, without having procured from the Su perintendent of Inauranco a certificate of uuthorlty so to do, and was exercising in Kansan its corporate franchises granted to It by the State of New York without having been authorized so to do by the laws of this State, or by permit of the Superintendent of Insurance. To this petition the defend ant, on tho 29th of September, filed a long answer, stating many matters of defense, claiming that It has done everything which It was required to do by the laws of the State, and that It was entitled to transact Its business In tho State of Kansas, not withstanding the refusal of the Superin tendent of Insurance to Issue It a ccrtlficato of authority bo to do. To this answer a reply was filed on tho 7th of October, and, afterwards, the cuse was advanced for hearing at the Jan uary session of the court. Tho defendant now asks leave to withdraw Its answer and file an amended and supplemental answer, alleging that it has ceased to transact In surance business in Kansas; .that It has brought Into court a sufficient sum of money to pay all costs In tho case, and asks that tho action thereupon be dis missed. Accompanying tho answer Is an affidavit of John E. Lord, stating that the defendant has ceased soliciting and procuring applications for Insurance, and withdrawn from the transaction of Insur ance business in this State, and that all contracts with the agents of the company in Kansas ended on December 31st, 1897. Leave being granted to withdraw th an swer first filed, and to file the amended and supplemental answer, It Is contended on behalf of the defendant, that the only proper order the court can make Is one of dismissal. No Issue of fact remains to be tried, us the statements in the affidavit of Lord are not controverted by the Attor ney General. The only question for our consideration Is as to the proper order to be made In the case. The defendants orig inal answer under which it claimed a right to transac t business In this State, having been withdrawn, the averments of the peti tion stand admitted with the additional facts appearing from the supplemental an swer that since the commencement of the action the defendant has ceased to carry on Its business, and has paid the costs of this action. 1 It will be observed as the pleadings now stand, the defendant neither denies that it was transacting business In violation of law at the time the action was commenced, nor disclaims a right, or a purpose to again resume Its business in Kansas as soon as this action is determined. It merely says it Is not now violating the law. In this state of the pleadings, the State is entitled to such judgment as the facts stated in the petition warrant The amended and supplemental answer states no defense. The case of the State vs. Graham, 13 Kan. 136, while not strictly in point, seems applicable to the principle here involved. In that case it was held, that where a County Treasurer while in office committed acta which worked a for feiture of the office, and then abandoned it, that the action of quo warranto In the name of the State might be maintained to terminate his right to the office notwith standing the abandonment. So In this case the action may be maintained to terminate and put an end to the defendant's claim of a right to exercise its corporate powers in Kansas. The temporary withdrawal from the State does not dispose of the con troversy. There is nothing on record show ing that the contention of the defendant as exhibited In its original answer, that it was rightfully transacting business in Kansas and may now lawfully do so, has been abandoned. A judgment against a corporation ousting It from the exercise of corporate powers, or franchises, Is nec essarily prospective In Its operation. The very purpose of. such an action is to pre vent, the future exercise of the privilege, or authority, wrongfully claimed. Judg ments of this character were entered by this court In the cases of the State ex rcf. vs. The City of Topeka, 30 Kan. 653, and 31 Id. 453, and In tho State ex rel. vs. Reg ents of University, 65 Kan. 389. No sub stantial reason appears for refusing the Stato a Judgment finally determining and ending the defendant's claim of a right to transact business in this State, notwith standing the temporary withdrawal or abandonment of the exercise of such al leged right. Judgment will be entered in favor of tho plaintiff, ousting the defendant from the exercise of Its corporate powers In tho transaction of Insurance business In Kansas, until duly authorised bo to do In accordance with the laws of the State of Kansas, by the Superintendent of Insur ance. Dissenting opinion by Johnson, J. The court has given no consideration to the power and discretion of the Superin tendent of Insurance ns affecting the de fendant, nor as to whether the company was formerly entitled to a llcenso from that officer. As there Is no actual contro versy between the parties, these matters were not presented for decision, and the only question Is What order shall be en tered In disposing of tho case? The sole purpose of the proceeding was to oust the defendant and to exclude It from transact ing Insurance business in the State of Kansas. It answers that it has ceased to do busi ness, has withdrawn from tho State, and has paid Into the court all accrued costs, and those things are shown by undisputed testimony. ' Having surrendered the priv ilege formerly exercised and gone out of the State, the purpose of the proceeding has been fully accomplished, and nothing Is left for trial, nor nnythlng upon which to base a judgment of ouster. There Is noth ing to show that the withdrawal from tho State Is temporary, nor to Impeach tho good faith of the defendant in stating that It has left the State. Not being in the State, nor claiming tho right to do busi ness here, what Is there to oust, or upon which such a Judgment can operate? State vs. Graham, supra, Is not authority here. There the term of the officer had not ex pired, and he still clatmed the right to the office. In tho Topeka and University casei, referred to In the majority opinion, the defendant up to Judgment claimed the right to exercise certain franchises and continued to usurp authority not conferred by law. It has been the ordinary practice heretofore In a case like this where a trial upon the merits cannot be had to enter an order .f dismissal. (Hurd vs. Beck, 45 Pao. Rep. 92; Kansas State Board of Health vb, Wate ex rel., decided December, 1897.) And this, I think, should be the order In the. present case. A true copy. ' . Attest: JNO. MARTIN, Seal. Clerk Supreme Court. In the Supremo court of the State of Kansas I, Jno. Martin, Clerk of the Supreme Court of tho State of Kansas, do hereby certify that tho foregoing are true ana correct copies of the per curiam decis ions In the above entitled cases as the same appear on file In my office. Witness my hand and the seal of the Su premo court, this 15th day of January, 1898. , , , JNO. MARTIN. Seal. Clerk Supreme Court. First published in the Advocate and News, January 19, 1898. No. 19228. Publication Notice. To H. P. Gogley: Take notice that you have been sued, with James S. Collins and Holen A. Collins as co-defendants, in the District court of Shawnee county, In the State of Kansas, by the Masonic Mutual Benefit Society of Kansas, and that you must answer the petition filed by the plain tiff, on or before the 2d day of March, 1898, or the said petition will be taken as true and Judgment rendered against your said co-defendants for the sum of eighteen hun dred dollars, with interest thereon at the rate of seven per cent, per annum from the 3d day of March, 1896, the amount clatmed In Bald petition to be due the plaintiff upon a certain note therein described, and for the foreclosure of a certain mortgage executed September 3, 1890, by your said co-defendants, on lot numbered one hun dred and fifty-seven (157) on Qulncy street. In the city of Topeka, In the county of Shawnee and State of Kansas, to secure the payment of said note, for the sale of said mortgaged premlseB, and forever bar ring you and your said co-defendanta from all right, title, estate, Interest, property, and equity of redemption in and to Bald mortgaged premises, or any part thereof. GEO. W. CLARK, Attorney for Plaintiff. Topeka, Kansas, January 11, 1898. Attest: E. M. Cockrell, Clerk. (First published January 5, ItM.) Notice. In the District court of Bhawoce county, Kan sas. Alia McSwegan, plaintiff, 1 vs. No. 19300. Daniel McSwegan', defendant. 1 To Daniel McSwegan: Yon are hereby notified that you have blen sued in the above named court by your wife. Alia McSwegan, who h&a instituted her action In divorce against you, on tbegrouodsof aban donment and extreme cruelty, and that unless you answer the Bald petition on or before the 19th day of February, A. D. 1)8, the Bald peti tion will be taken as true and judgment ren dered dissolving the bonds of matrimony now existing between you, and restoring the plaint iff to her maiden name of Alia Mc Henry, and forcotUof suit. J.B. ENSMINOKR, Attorney for Plaintiff. , Atteit: E. M. CockAixl, . . seal Clerk.