Gerlach v. Skinner

The opinion of the court was delivered by Horton, C. J.: Defendant in error — plaintiff below — has presented his motion to this court to dismiss the petition in error, upon the alleged ground that the case-made was not settled and signed within the time required by law; but he has filed no brief and presented no argument upon the merits of the case. It appears from the record that the judgment was rendered on February 12, 1884. Plaintiffs in error— defendants below — were granted to April 12,1884, in which to make and serve the case. This time was twice extended, and was finally fixed for July 10, 1884. The case was made and served on June 30,1884, and settled and signed on November 29,1884, the plaintiff below not being present, either in person or by attorney. Upon the settling of the case, an affidavit was submitted to the district judge, showing the time of the service of the case-made, and setting forth that the attorney for plaintiff below stated that the case-made was true, and that he had no amendments to suggest. The case was made and served within the time allowed, and the judge had all reasonable time within a year after the rendition of the judgment to settle and sign the case-made. While the statute provides for fixing the time in which the case-made must be served, and in which the amendments must-be suggested, the time for settling and signing the same is not [89] prescribed in the statute. Therefore the objection that the case-made was not settled and signed within the time required by law, is not well founded. The motion to dismiss must be overruled. (Meixell v. Kirkpatrick, 25 Kas. 13; Hammerslough v. Hackett, 30 id. 57; Pierce v. Myers, 28 id. 364; Douglass v. Parker, 32 id. 593.) The demurrer to the evidence of plaintiff below should have been sustained, and the judgment rendered is erroneous. Chapter 128, Laws of 1881, commonly known as “the prohibitory liquor law,” prohibits the sale and barter, directly or indirectly, of all kinds of intoxicating liquors, except for medical, scientific and mechanical purposes, and makes it a criminal offense for any person to sell or barter, directly or indirectly, any kind of intoxicating liquor, except for some one of such purposes. The plaintiff below claims that he bought, by a single and indivisible contract, a lot and the building thereon, with a stock of intoxicating liquors, including bar fixtures, etc., contained in the building upon the lot, of the value of $1,500. Neither of the parties had any permit to engage in the sale of intoxicating liquors, nor were any of the liquors purchased for medical, scientific or mechanical purposes. The contract testified to was an entire one; it is not in its nature divisible or separable into distinct parts; therefore the whole contract is void and cannot be enforced; it cannot be used as the basis of an action. Where a part of a consideration of an entire contract is illegal, the contract is tainted and the courts will not compel its performance. “You shall not stipulate for iniquity; all writers upon our law agree in this: no polluted hand shall touch the pure fountains of justice.” (Collins v. Blanton, 2 Wils. 341.) The policy of the law is to leave the parties in all such cases without remedy against each other; the courts will not lend their aid to a party who founds his cause of action upon an immoral or illegal act. If, from a plaintiff’s own statement, or otherwise, the cause of action appears to arise ex twrpi causa, or the transgression of a positive law of the state, there the court says he has no right to [90] be assisted. (Wharton on Contracts, § 340; Korman v. Henry, 32 Kas. 49, 343.) The amendment allowed to the pleadings in no way affected the contract of the parties, or cured its illegality.. The contract not being in its nature divisible or separable into distinct parts, plaintiff below had no right to ignore his purchase of the intoxicating liquors and recover the real estate. He could not thus cover up the illegality of the transaction or agreement in which he participated, nor could he in this manner have the court aid him in separating or purging the illegal from the legal consideration. A part of the consideration of the contract betwen the parties to the action being illegal, and there being no means of separating the legal from the illegal part of the consideration, the enforcement of the contract, or any part thereof, cannot be had in the courts. (McBratney v. Chandler, 22 Kas. 692.) The judgment of the district court will be reversed, and the cause remanded. All the Justices concurring.