Osborne v. Young

The opinion of the court was delivered by Valentine, J.: The defendant in error, J. AV. Young, who was one of the defendants in the court below, moves in this court to dismiss the petition in error and case-made, upon various grounds, none of which we think are tenable, and hence the motion must be overruled. The principal ground upon which the motion is made, and the only ground that merits any special consideration, is the alleged ground that the case-made was not filed in the supreme court within the proper and prescribed statutory time. Now § 556 of the civil code, as amended in 1881, (Laws of 1881, p. 229,) provides among other things that “no proceeding for reversing, vacating or modifying judgments or final orders shall be commenced unless within one year after the rendition of the judgment or making of the final order complained of;” and it is an admitted fact in this case, that the case-made and pe — 774 — tition in error were not filed in the supreme court within one year after the final judgment was rendered in the case. Hence the plaintiff claims under said § 556 of the civil code, as amended in 1881, that this court has no jurisdiction to review the judgment of the court below, or any proceedings had in the case prior to the rendition of the judgment. This we think is a mistake; for although the case was not filed in this court within one year after the rendition of the final judgment, yet it was so filed within less than one year after the plaintiff’s motion for a new trial was heard and overruled, and therefore we think that this court has ample jurisdiction to hear and determine any question and every question that was involved in the motion for a new trial. The order overruling the motion for a new trial, we think was a final order within the meaning of said § 556 and § 542 of the civil code; and if it was, then we think that we not only have power and jurisdiction to adjudicate and determine with regard to the distinctive ruling of the court below in making the order overruling such motion, but we also, and as a necessary consequence, have the power and jurisdiction to review and consider every question and every action or ruling of the court below fairly involved in the final determination of such motion. For the decision of a kindred question, see Life Ins. Co. v. Twining, 19 Kas. 349, 366, 367; Ingersoll v. Yates, 21 Kas. 90, et seq. Some of the questions now raised, we think, were fairly involved in the determination of the plaintiff’s motion for a new trial, and hence we shall now proceed to consider the case upon its merits. The plaintiff in error claims that the record of this case' presents four principal questions, as follows: “First. Did the district court err in overruling the objections of the plaintiff in error' to the introduction of the ‘case-made’ in the case of Ecton v. Harlan in evidence? “Second. Did the district court err in overruling the objections of the plaintiff in error to the introduction of oral evidence to prove that upon overruling the motion for a new trial in the case of Ecton v. Harlan, the court allowed the plaintiff there sixty days’ time within which to make and serve a case for the supreme court? — 775 — “Third. Upon the facts as found by the court, which is paramount — the mortgage to the plaintiff in error, or the sheriff’s deed to the defendant in error? “Fourth. Did the plaintiff in error make a sufficient showing to entitle him to a new trial upon the ground of surprise, which ordinary prudence could not have guarded against?” We shall consider these questions in their order. I. We do not think that the district court erred in overruling the objections of the plaintiff to the introduction in evidence of the “case’made” in the case of Ecton «. Harlan. While such “case-made” may have contained some things that were incompetent or irrelevant as evidence, yet it- also •contained some competent and relevant evidence; and the-plaintiff’s objections were not specific, but were simply general, for incompetency and irrelevancy, and to the whole “case-made.” The plaintiff should have pointed out the incompetent and irrelevant evidence, but he did not; hence, we do not think that the court below erred in permitting the “case-made” to be introduced in evidence over the objections of the plaintiff. II. Whether the district court erred in overruling the objections of the plaintiff in error to the introduction of oral evidence to prove that upon the overruling of Ecton’s motion for a new trial inlthe case of .Ecton «.Harlan, sixty days were allowed to make and serve a case for the supreme court, we think is wholly immaterial. The same fact we think was •conclusively proved by other evidence. But as to the validity of the evidence to prove this fact, and the bearing that this fact may have in the case, we shall have more to say further on in this opinion. III. Upon the facts of this case as found by the court below, we think the plaintiff’s rights under his mortgage are inferior and subsequent to the rights of the defendant, Young, under his sheriff’s deed; but we shall not discuss this question now, for we do not think that the question was fairly involved in the ruling of the court below upon the plaintiff’s motion for a new trial. The court below in overruling said — 776 — motion, was not called upon to say whether^the facts found by it would sustain the judgment, or not. IV. Neither do we think that the plaintiff in error made a sufficient showing in the court below to entitle him to a new trial upon the ground of surprise, which ordinary prudence could not have guarded against. The plaintiff claims to have been surprised at the evidence given by the witness Frank Playter. In order to understand the evidence of Playter, at which the plaintiff claims to have been surprised, it will be necessary to state some of the facts of the case, which we shall do concisely; and this we shall do also for the purpose of commenting upon some other questions that might be considered as involved in the case. It. appears that on November 10, 1876, and prior thereto, Eobert H. Ecton held a mortgage upon the land of Israel G. Harlan — the same land which is now in controversy. This mortgage was recorded in the office of the register of deeds of Crawford county, the county in which the land was situated. No satisfaction of such mortgage has ever been entered uponc.the records in the office of the register of deeds. •Prior to November 10, 1876, Ecton obtained a judgment against Harlan for $250, and costs, and foreclosing the mortgage. Ecton was not satisfied with the judgment, and excepted thereto, and also filed a motion for a new trial, which motion was overruled; and he also excepted to the order of the court overruling his motion for a new trial. Pie also obtained an order from the court extending the time sixty days within which to make a case for the supreme court. The last-mentioned order, however, was not entered upon the journals, or shown by the records of the court. Playter, however, was cognizant of all these things. F. M. Shaw & Co., of Paola, Miami county, were the agents of the plaintiff Osborne for loaning money, and Playter was a partner of F. M. Shaw & Co. for procuring loans in Crawford county. On November 9,1876, Playter and Harlan agreed that Harlan should take a loan from the plaintiff Osborne, and in pursuance of such agreement Piarían executed the note and — 777 — mortgage now in controversy, which mortgage was duly recorded on the next day; and on that day Playter advanced a sufficient sum of money to pay the judgment rendered in the case of Ecton v. Harlan. Playter paid this money, the amount of such judgment, to the clerk of the district court, and the clerk entered the judgment satisfied. This money remained with the clerk, or subject to his order, for some time, until finally one of Harlan’s attorneys drew it from the clerk’s office and retained the same as attorney’s fees due from Harlan to himself. The note and mortgage were, sometime after November 10, 1876, forwarded to the plaintiff Osborne, who resided in the city of Binghamton, in‘ the state of New York; and immediately afterward, and on November 25, 1881, Osborne drew a check for the amount of the note and mortgage on the Metropolitan bank of New York, to be placed to the credit and advice of the First National bank of Paola. At some time afterward, but just when is not shown, F. M. Shaw & Co. received the amount of the note and mortgage; and, at some still later period of time, but when is not shown, and can scarcely be guessed at, Play-' ter received such amount; and in about one year thereafter, the balance of the amount of the note and mortgage was paid by Playter to Harlan. The evidence of Playter, concerning which the plaintiff claims to have been surprised, is as follows: “I advanced the money to pay off the Ecton judgment against Harlan, for Harlan. It was advanced the 10th of November, 1876. It was not advanced to him for that purpose until after Harlan and wife signed the mortgage and same was placed on record. I expected to get the money back so advanced from Osborne, when papers, the note and mortgage, were forwarded. I afterward got a draft for the amount of Harlan’s note and mortgage, less a commission retained by F. M. Shaw & Co. I can’t tell just when I got the draft. Could tell by referring to my books over in the bank. . . . “I have examined my books at the bank, and I think that the draft from Osborne, to pay money on the Harlan mortgage, was received several weeks after the execution of the mortgage. It may have been as long as three weeks. It — 778 — came to me through F. M. Shaw & Co., of Paola. I cannot state when it did come exactly, but it was several weeks after the note and mortgage were forwarded.” Playter did not state, however, when the note and mortgage were “forwarded,” and there was no evidence introduced upon the trial showing this fact. Playter was a witness for the plaintiff, and it does not appear that the plaintiff was surprised at his evidence, or that he attempted to prove that it was not true until after the findings and judgment of the court below were rendered against him; and we do not think that any of the evidence contained in the affidavits shows that his evidence was not true. He did not testify that he was the agent of Osborne, but he testified that he was the agent of Harlan; and he testified substantially that the money which he advanced for Harlan on November 10, 1876, was his own, and there is nothing in the record that shows otherwise. There is nothing that shows that the money belonged to Osborne. It is true that Osborne’s counsel file their affidavits stating that they had believed (and that Playter had so stated to them), previously to the time when Playter gave his testimony in the case, that' the money which he had advanced to Harlan belonged to Osborne, and had been advanced to him (Playter) by F. M. Shaw & Co., of Paola, Kansas. Now supposing that Osborne’s counsel did believe this, and supposing that Playter told them so, still there is nothing in the record that shows that it is true, and the affidavit of Osborne himself would tend to show that it is not true. No member of the firm of F. M. Shaw & Co. testified that the money advanced belonged to Osborne, and in all probability it did not belong to him. The evidence would seem to show that Osborne did not advance or pay any money on this note and mortgage until some time after their execution, and that he then advanced or paid the whole of it, less $32 deducted for commissions and expenses. Playter also testified that it was several weeks after the mortgage was executed before he received the money that came from Osborne through the various banks and through F. M. Shaw & Co., of Paola, Kan — 779 — sas, to him; and there is nothing in the whole record that tends to contradict this, while the evidence of Harlan shows that Harlan did not receive the money for about one year after the mortgage was executed. There is nothing in the case further than we have already stated, that shows that the plaintiff or his counsel had any reason to suppose that Playter would testify differently from what he did testify; and there is really nothing in the case further than we have already stated, tending to show that the plaintiff or his counsel had any good reason for being surprised at Playter’s testimony. And there is nothing in the case that shows that Playter ever will testify differently from what he has already testified. The court below found that Osborne did not part with his money until after the “case-made” in the case of Eeton v. Harlan had been filed in the district court; and we think this finding was founded upon sufficient evidence. The “case-made” itself showed that Ecton had leave from the court to make and serve his ease within sixty days; and the case was so made, served, settled, signed, and authenticated and filed in the district court within that time. The case was afterward taken to the supreme court, where the judgment of the district court was reversed, and the cause remanded for a new trial. (Ecton v. Harlan, 20 Kas. 452.) Upon the findings of the court below we think its judgment is correct; and we think the findings are sustained by sufficient evidence; and no substantial error was committed. If Playter was the agent of Osborne, then the judgment was certainly correct; and there is considerable in the case tending to show that Playter was the agent of Osborne. F. M. Shaw & Co., of Paola, Kansas, were Osborne’s agents, and Playter was a partner of F. M. Shaw & Co. for procuring loans in Crawford county, Kansas. He procured this loan; he advanced money on it, (and the plaintiff’s counsel admit and would almost seem to claim that the .money advanced was Osborne’s money;) the note and mortgage were forwarded to Osborne, and Osborne accepted them, made them his own and paid for them, thereby apparently ratifying whatever had — 780 — been done in procuring them; and Playter was afterward reimbursed (provided the amount had not been previously furnished to him) for the amount that he had advanced; and Playter had full knowledge of the proceedings in the case of Ecton v. Harlan and knew Ecton was preparing to take the case to the supreme court. But supposing that Playter was not the agent of Osborne, and supposing that he was in fact the agent of Harlan — and this is just what the plaintiff contends, and is just what Playter testified to, and seemingly this is precisely the theory upon which the court below founded its decision in the case: then still, upon the other facts of the case, we think it must be presumed in law that when Osborne parted with his money he knew just the condition of Ecton’s mortgage and Ecton’s suit against Harlan, and knew that Eeton’s mortgage was not satisfied, and that Ecton was preparing to take his case against Harlan to the supreme court. The present defendant, Young, simply takes Ecton’s place. At the time “that Osborne parted with his money, Ecton’s mortgage stood recorded, in the office of the register of deeds, and was not satisfied or discharged upon the records of the office of the register of deeds, as the law provides that a mortgage shall be whenever it has been satisfied. (Comp. Laws of 1879, pp. 555, 556, §§ 5, 6, 7 and 8.) A judgment was rendered in favor of Ecton and against Harlan, upon such mortgage in the district court; but the record of the judgment showed that Ecton was not satisfied with the judgment; and the “case-made,” which was then on file in the clerk’s office, also showed that Ecton was not satisfied with the judgment, and that he intended to take the case to the supreme court and have the judgment reversed, if he could succeed in so doing; and the “case-made” upon its face showed that it was a valid “case-made;” and although an amount had been paid to the clerk by Playter sufficient to satisfy the judgment, yet by asking the clerk the plaintiff could have ascertained that Ecton had not and would not receive the same. — 781 — We think that the judgment of the court below was rightly rendered, and therefore it will be affirmed. All the Justices concurring.