Priest v. Robinson

• Decision Date: 08 February 1902
• Docket Number: 12,464
• Citation: 67 P. 850,64 Kan. 416
• Parties: LAURA B. PRIEST v. GEORGE ROBINSON
• Court: Kansas Supreme Court

67 P. 850

64 Kan. 416

LAURA B. PRIEST v. GEORGE ROBINSON

No. 12,464

Supreme Court of Kansas

February 8, 1902

Decided January, 1902.

Error from Cherokee district court; A. H. SKIDMORE, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. EVIDENCE -- Objection Must be Specific. An objection to evidence offered must be specific. Where testimony offered is not the best evidence, or the proper foundation has not been laid for its introduction, an objection that it is incompetent, irrelevant and immaterial does not specifically point out the defect existing therein, and the overruling of such objection is not error.

2. TITLE AND OWNERSHIP -- Ejectment -- Collateral Attack. When the defendant in an action of ejectment claims title based on a tax deed, and, also, upon a decree quieting the title in his antecedent grantor in possession under such tax deed, in an action to which plaintiff was a party, the validity or invalidity of the tax deed is not material, unless the decree quieting the title is absolutely null and void and subject to collateral attack.

A. S Dennison, and W. R. Cowley, for plaintiff in error.

Edward M. Tracewell, and William J. Moore, for defendant in error.

POLLOCK J. DOSTER, C. J., SMITH, J., concurring.

OPINION

POLLOCK, J.:

This was an action in ejectment brought by Laura B. Priest against George Robinson to recover a quarter-section of land. The plaintiff claims by title derived from foreclosure of a mortgage given by Householder upon the premises; defendant, by chain of title based upon tax deed from Cherokee county, possession, and decree quieting title in one of his antecedent grantors, named Randall, in an action brought by Randall against plaintiff and others. The defendant had judgment below, and the plaintiff brings error.

The determination of this controversy upon its merits necessarily depends upon the validity or invalidity of the decree obtained in the suit brought to quiet title. There first arises, however, a question of practice. Upon the trial, defendant, in support of his title, offered many copies of conveyances from a record thereof, which conveyances constitute necessary links in his chain of title, without making preliminary proof either that the copies offered were contained in any public record authorized by law to be kept, or that the originals were not in his possession. In other words, he offered secondary evidence without accounting for the absence of the best and without laying the proper foundation for the reception of the testimony offered. To these offers plaintiff objected upon the ground that the testimony offered was "incompetent, irrelevant, and immaterial." Upon this objection made the court did not rule, but the testimony offered was received and used in evidence.

It is earnestly contended by counsel for plaintiff in error that such evidence, upon the objections made, should have been excluded; also, that the failure of the trial court to rule deprived the plaintiff of her right of exception, and is such an irregularity in the proceedings that a new trial should have been granted upon plaintiff's motion. It is the duty of a trial court, when objection is made to any step in the progress of the trial, to rule upon the objection made, and the responsibility attending a ruling cannot be avoided by a failure so to do and permitting the trial to proceed as though no objection had been interposed. As an exception to a ruling is not available to a party until the ruling is made, it is not in the power of a trial court to deprive a party of the advantage of an exception by failing to rule. (Young v. Det. G. H. & Mil. Ry., 56 Mich. 430, 23 N.W. 67, 19 A. & E. Rld. Cas. 417.) In such case all objections taken are treated in practice as having been overruled and exceptions duly taken and allowed. We shall, therefore, proceed to a determination of the remaining question as though the record showed the objections made to have been overruled and exceptions thereto duly noted.

The testimony offered was improper and objectionable; no foundation was laid for its introduction. It was not shown that the books from which the purported copy was offered and received were public records belonging in and coming from the office of the register of deeds of Cherokee county; or, in other instances, that the documents offered were public records of the court whence they purported to come. But does the objection made reach the defect in the proof offered? That the evidence offered related to the controversy is apparent, and, hence, was relevant. That it was material is equally apparent, since many of the copies of conveyances offered were essential links in defendant's chain of title. Was the evidence so offered competent? This proposition, in the absence of controlling authority, would seem to be in more doubt. It has always been the rule of this court that an objection made must be specific -- must go to the very root of the defect and be sufficient to challenge the attention of the court to the precise character of the defect claimed to exist. (K. P. Rly. Co. v. Cutter 19 Kan. 83; Abbott v. Coleman, 22 Kan. 250, 31 Am. Rep. 186.) This court, in dealing with this...