Bohart v. Republic Inv. Co.

• Decision Date: 11 June 1892
• Parties: W. H. BOHART v. THE REPUBLIC INVESTMENT COMPANY
• Court: Kansas Supreme Court

30 P. 180

49 Kan. 94

W. H. BOHART v. THE REPUBLIC INVESTMENT COMPANY

Supreme Court of Kansas

June 11, 1892

Error from Reno District Court.

THE opinion states the case.

Judgment affirmed.

Davidson & Williams, for plaintiff in error:

1. The court below erred in overruling the demurrer of defendant below on the grounds, first, that the court had no jurisdiction to hear and determine the cause; and, second that plaintiff's petition failed to state a cause of action. Comp. Laws of 1885, P 3848. When a court of general jurisdiction exercises statutory and extraordinary powers, it is governed by the same rules as courts of limited jurisdiction, which is that nothing shall be intended to be within the jurisdiction but that which is so expressly alleged. Haywood v. Collins, 60 Ill. 328; Gray v. Steamboat Reveille, 6 Wis. 59.

2. The contracts sued upon and made a part of the petition provide that, in case the second party does not comply with the terms of the contracts and meet the deferred payments therein mentioned, that the contracts are forfeited and become null and void, and second party forfeits all moneys paid. Under the terms of the contracts, the balance of the purchase-money cannot be recovered. This was evidently the construction put upon the contracts by both parties at the time of execution and it is certainly the most equitable construction that can be put upon them now.

3. The court erred in not sustaining the demurrer of defendant below to the evidence offered by plaintiff, because the plaintiff nowhere in said evidence proved the existence of either of the jurisdictional facts mentioned in P 3848, Comp. Laws of 1885, which would give the court below jurisdiction; for whether it is necessary to plead them or not, it is certainly necessary to prove them.

Whiteside & Gleason, for defendant in error:

The case-made in this cause is incomplete in not containing the instructions of the court, nor a statement that it contains all the evidence and testimony offered.

This suit was brought on contracts for payment of money arising in the state of Kansas by a domestic corporation against a resident of Missouri. It was brought in Reno county, where said non-resident had lands, and the lands were taken in regular attachment proceedings at the commencement of the suit, in order that the amount of money claimed against said non-resident could be charged against said lands. It was brought under §§ 53 and 190 of the code. The suit was simply for the recovery of money. It is regular, as shown by case-made in every respect, and fully authorized by the code. It was brought in a court of general jurisdiction, and there is no prescription in the statute that it must be alleged in the petition in such a case that the defendant is a nonresident and has property or debts in the county where the suit is brought; but of course if there was a failure of the defendant to appear it would have been necessary to show service by publication and prove these facts, if the court did not take judicial notice by the attachment proceedings and affidavits of publication. No attack was made on the attachment, and the court rendered, in the usual and ordinary manner, on the verdict of the jury and the attachment proceedings, a personal judgment and judgment in attachment. The Illinois case cited by plaintiff in error is not for him and the Wisconsin case is not applicable.

The citation of authority on our side is unnecessary, still we mention: Railroad Company v. Akers, 4 Kan. 470; George v. Hatton, 2 id. 333; 26 id. 102; 28 id. 364; 20 id. 660.

If it were necessary to prove at the trial the facts which plaintiff in error deems "jurisdictional," it will be presumed that that was done, for the case-made does not purport to contain all the evidence.

The defendant in error had the right to sue on the promises made in the contracts for the payment of money as they fell due. A mere waiver of some rights conferred on second party by the contracts is not a rescission. Barrett v. Dean, 21 Iowa 423; Sigler v. Wick, 45 id. 690; Blood v. Enos, 12 Vt. 625.

Yet even if we concede that the contracts gave Bohart an option not to pay for the lots involved in this action, still there can be no reversal. All the evidence is not before the court and none of the instructions. How can this court determine what facts of assent, ratification, estoppel, as well as of contract, not disclosed by the case-made, may or may not have supported the verdict of the jury? That would be purely a matter of speculation. The presumptions in the face of an incomplete record are all in favor of the verdict of the jury and the judgment of the court.

No tender of deed was necessary in this case, as the suit was simply for installments. Battey v. Beebe, 22 Kan. 81.

HORTON, C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

This was an action brought in the court below by the Republic Investment Company against W. H. Bohart, to recover $ 316.85 with interest, upon 12 written contracts for the sale of certain lots in Belleville, in Republic county, in this state. These contracts were executed and signed upon the 25th day of August, 1887, by the investment company and W. H. Bohart. Each contract provided that the purchase-money therein named was to be paid in installments. The investment company, upon the completion of all the payments, was to execute to Bohart, his heirs and assigns, a deed conveying the premises in fee-simple, with the ordinary...