Board of Commissioners v. Arnold

— 289 — The opinion of the court was delivered by Horton, C. J.: A preliminary question is presented. It is urged that the record is not sufficient to present any question for review. Upon the trial, both parties requested that conclusions of fact be found and stated in writing separately from the conclusions of law. This was done. No exceptions were taken to the findings of fact or conclusions of law. The defendants below, however, filed a motion for a new trial, alleging, among other things, that the decision of the trial court was contrary to law. “Where the special findings.of fact in a jury trial are inconsistent with the general verdict, the former control, and the court must give judgment accordingly.” (Civil Code, §287.) In a case tried by the court, where special findings of fact are made, the same effect is to be given them as if found by the jury. (Weil v. Eckard, 37 Kas. 696.) If a case is tried by the court without a jury, and the findings of the court are not sufficient to sustain the judgment rendered, even if there be no exception, this court may direct judgment upon the special findings. It has been the general practice of this court to review the form and substance of all final judgments, and correct all substantial errors therein, whether the judgment has been excepted to in any form or not. (Koehler v. Ball, 2 Kas. 160; Lender v. Caldwell, 4 id. 339; Wilson v. Fuller, 9 id. 193; Coburn v. Weed, 12 id. 182; Dexter v. Cochran, 17 id. 447; Brown v. Tuppeny, 24 id. 29; Comm’rs of Wabaunsee Co. v. Muhlenbacker, 18 id. 129.) Twenty-four of the plaintiffs in this action signed the petition which was presented to the board of county commissioners for the improvement of the road. They all lived contiguous to the road during the entire progress of the work thereon, and the improvement made, as requested, greatly enhanced the value of their property much in excess of the taxes or assessments imposed. As to these parties, the ease of Stewart v. Comm’rs of Wyandotte Co., 45 Kas. 708, applies: “A party cannot invite and encourage — 290 — a wrong, and then ask a court of equity to protect- him by an injunction from the consequences of that wrong.” The plaintiffs below who did not sign the petition are not estopped, within the cases of Barker v. Comm’rs of Wyandotte Co. 45 Kas. 681, and Comm’rs of Wyandotte Co. v. Barker, 45 id. 699. The Southwest boulevard was not a county road, but was situated within a city, and therefore not subject, under the statute, to the control of the county commissioners. Even if this were not the case, under chapter 214, Laws of 1887, “An act providing for the improvement of county roads,” the county board has no power to order a regularly laid out road to be improved to a greater width than that established by the proceedings under the general road law, by which the road in question was laid out and opened. (Barker v. Comm’rs of Wyandotte Co., 45 Kas. 681.) The judgment of the court of common pleas must be modified. As to all the parties who signed the petition for the improvement, the judgment will be reversed, and, upon the findings of fact, judgment will be entered against them and in favor of the county commissioners and the other defendants below. As to all the parties who did not sign the petition, the judgment will be affirmed. Costs will be adjudged against the parties who signed the petition, and the parties who did not sign will recover their costs. All the Justices concurring.