Fleet v. Stout

• Decision Date: 03 July 1890
• Citation: 44 Kan. 523,24 P. 960
• Parties: WILLIAM K. VAN FLEET v. MARY F. STOUT, as Executrix of the last will of Elizabeth Van Fleet, Deceased
• Court: Kansas Supreme Court

24 P. 960

44 Kan. 523

WILLIAM K. VAN FLEET v. MARY F. STOUT, as Executrix of the last will of Elizabeth Van Fleet, Deceased

Supreme Court of Kansas

July 3, 1890

Error from Harvey District Court.

The case is stated in the opinion. Judgment for the plaintiff Mary F. Stout, as executrix, etc., at the May term, 1888. The defendant, William K. Van Fleet, brings the case here.

Judgment affirmed

Brown & Cline, for plaintiff in error.

Joseph Crow, jr., for defendant in error.

JOHNSTON J. All the Justices concurring

OPINION

JOHNSTON, J.:

Mary F. Stout, as executrix of the last will and testament of Elizabeth Van Fleet, deceased, brought an action against William K. Van Fleet, and alleged that, in 1882, Elizabeth Van Fleet, who was then the owner and holder of $ 800 in United States four-per-cent. bonds, placed them in the hands of William K. Van Fleet, who was to hold them in trust, and transmit the interest coupons to her as they matured; that he so held them until 1883, when he sold the bonds, in violation of his trust, and converted the proceeds to his own use. It is averred that he has refused upon demand to turn over the bonds or the proceeds of the same. Judgment was demanded in the sum of $ 1,075, with interest. The answer of the defendant was a general denial, and that the bonds in question were a donation to him, his brother and sister. The cause was tried without a jury, and judgment in favor of Mary F. Stout, as representative of the estate of decedent, for $ 1,115.59, was given. William K. Van Fleet complains, and alleges four grounds of reversal.

The first objection is, that the court proceeded with the trial although a temporary injunction previously granted was in force, enjoining the further prosecution of the action. In a supplemental answer the defendant below alleged that a proceeding had been instituted in another state to set aside the will under which Mary F. Stout had been appointed executrix, and asking the court to enjoin the prosecution of the action until these proceedings in the other state were concluded, and finally to grant a perpetual injunction. Upon this application a temporary injunction was granted, to take effect upon the giving of a good and sufficient undertaking in the sum of $ 2,000. The defendant thereupon gave an undertaking, but the attention of the court being called to the same, it was held not to be in compliance with law and the order of the court. Additional time was then given to defendant to file the required bond, but it was not filed, and the court treated the order previously given as ineffectual, and about a year thereafter proceeded with the trial of the cause. The injunction was not to take effect unless the conditions imposed were complied with. The bond tendered to the court was examined by it, and held to be insufficient. The granting or refusal of a temporary injunction is largely within the discretion of the court, and the matter being still before the court in this instance, it determined at once whether the bond tendered was in conformity with its order; and having held adversely, proceeded upon the theory that no injunction was yet in force. The defendant, however, was given further time and opportunity to file such bond as would make the order operative. The mere order of the court granting an injunction upon conditions to which the party did not conform was no obstacle against proceeding with the trial of the cause. The failure to give the required undertaking rendered the order inoperative, and warranted the court in ignoring it. (Civil Code, § 242; The State v. Comm'rs of Rush Co., 35 Kan. 150; The State v. Comm'rs of Kearny Co., 42 id. 739.) The defendant was not hurried into a trial, nor was he limited in his defenses by reason of the refusal of an injunction. He was given abundant opportunity to make full preparation to present any and every defense which he might have, without regard to whom was the representative of the decedent's estate.

The next objection is, that the court erred in admitting in evidence certain letters written by the defendant below to the decedent and Peter S. Stout, one of the witnesses in the case, upon the ground that they had demanded a copy of all writings intended to be offered in evidence at the trial, and the plaintiff had failed to grant the defendant or his attorneys an inspection of the letters or copies of the same. The record shows that a notice was served upon the plaintiff's attorneys, demanding an inspection and copy of all deeds, instruments and writings intended to be offered in evidence at the trial, but we find no evidence in the record that there was a failure or refusal on the part of the plaintiff to comply with the requirements of the notice. Before the court could exclude the letters it was essential for the plaintiff to show, not only that the demand had been made, but that there had been a failure and refusal to comply with the same. Even if proof of a refusal had been made, the admission of the letters would not require a reversal. We have read the letters that were introduced, and find that they are not inconsistent with the defendant's admissions in other letters, not objected to, and in his...