The Farmers State Bank of Galva v. Bracey

• Decision Date: 10 February 1923
• Docket Number: 23,983
• Citation: 112 Kan. 677,212 P. 675
• Parties: THE FARMERS STATE BANK OF GALVA, Appellant, v. L. E. BRACEY, Appellee
• Court: Kansas Supreme Court

212 P. 675

112 Kan. 677

THE FARMERS STATE BANK OF GALVA, Appellant, v. L. E. BRACEY, Appellee

No. 23,983

Supreme Court of Kansas

February 10, 1923

Decided January, 1923.

Appeal from Lyon district court; WILLIAM C. HARRIS, judge.

Appeal dismissed.

SYLLABUS

SYLLABUS BY THE COURT.

APPEAL AND ERROR--Judgment Complied With--Waiver of Right of Appeal. The action was one to recover on a promissory note. The defense was, the note had been procured by false representations, and the plaintiff was not an innocent holder. The defendant prevailed, and judgment was rendered against the plaintiff for costs. The plaintiff appealed, and afterwards paid the costs. Held, the appeal must be dismissed.

J. M Grattan, of McPherson, Henry E. Ganse, Gilbert H. Frith, and Louis F. Clevenger, all of Emporia, for the appellant.

R. M Hamer, and O. T. Atherton, both of Emporia, for the appellee.

OPINION

BURCH, J.:

The action was one to recover on a promissory note. The defense was, the note had been procured by false representations, and the plaintiff was not an innocent holder. The defendant prevailed, and the plaintiff appeals.

Painter was cashier of the bank, and in active management of its affairs. Munn was a director. Bracey was a farmer, living near Galva. By means admitted to have been fraudulent, Munn sold to Bracey ten shares of the corporate stock of the Bankers Mortgage Company, taking in payment of the price a promissory note for $ 1,500, in which the bank was named as payee. Munn delivered the note to the bank, and was credited with the amount of it. At maturity of the note, a renewal note was given, and the action was based on the latter instrument. The cause was tried to a jury, which returned findings of fact, and a general verdict for the defendant. The judgment read as follows:

"Wherefore, it is ordered and adjudged by the court that the defendant have and recover of and from the plaintiff his costs taxed at $ 37.60."

It is conceded the judgment included costs made by the defendant. Some time after judgment, the clerk of the court mailed to the bank a bill of costs amounting to $ 37.60, giving credit for the deposit to secure costs in the sum of $ 25. The cashier remitted the balance to the clerk, who distributed the costs, and receipted in full to the bank. The defendant moves to dismiss the appeal.

The writer is able to appreciate the feelings of the attorney for the bank when he was confronted with the motion to dismiss. In the case of York v. Barnes, 58 Kan. 478, 49 P. 596, he was associated with attorneys who succeeded in defeating a tax deed. The court, however, required our client to pay the taxes. He was anxious to close up the litigation, and paid the money into court. The tax-deed holder appealed. Believing the particular circumstances were such that our client ought not to reimburse the tax-deed holder, we appealed. This is what the court said:

"The defendant, having voluntarily complied with the judgment so far as it is adverse to him, and having paid the money into court for the use of the plaintiff, is in no position to insist on errors in its rendition." (p. 480.)

The principles involved was announced and applied as early as 1874, in the case of Babbitt v. Corby, Adm'x, 13 Kan. 612. In that case, Babbitt claimed title to land under tax deeds. The deeds were set aside, and he was given a lien for taxes. He appealed, but afterwards accepted the money adjudged to be due him. In dismissing the appeal the court said:

"By voluntarily accepting the proceeds of the judgment, the plaintiff in error waived any errors, if errors there were, in it. A party who complains of a judgment must be consistent in his conduct with reference to it. If he recognizes its validity, he will not be heard to say that it is invalid." (p. 614.)

In the Babbitt case, the appellant recognized validity of the judgment by accepting its benefits. In the York-Barnes case Barnes recognized validity of the judgment by accepting its burden and paying it.

The cashier pleads ignorance of the consequences of his conduct, and the board of directors of the bank declares it had no intention of abandoning the appeal. In no case in which an appeal has been dismissed was it the intention of the party recognizing validity of the judgment to prejudice his appeal, and in several instances the intention not to prejudice the appeal was expressly declared. In the case of The State v. Conkling, 54 Kan. 108, 37 P. 992, the defendant was adjudged guilty of contempt of court for obstructing a receiver, and was sentenced to pay a fine and to stand committed until fine and costs were paid. After his motions for new trial and in arrest of judgment had been denied, he paid the fine and costs, under protest, and declared he reserved the right to appeal. In dismissing his appeal the court said:

"It appears that the sentence of the law has been executed, and nothing is left for further controversy. By his own act, Conkling has satisfied and discharged the judgment entered against him. His protest and attempt to reserve the right of appeal are unavailing. The statute does not provide for nor contemplate an appeal from a discharged judgment." (p. 108.)

In the case of Crouse v. Nixon, 65 Kan. 843, 70 P. 885, members of a canvassing board complied with a peremptory writ of mandamus to count votes and certify the result. Two members made the count and certificate, under written protest, and appealed. In dismissing the appeal the court said:

"It is not necessary for us to examine into the merits of the case, or, more accurately speaking, we cannot do so. The plaintiffs in error have appealed from an order to which they had already yielded obedience. That they cannot do. They cannot perform the required act and at the same time appeal from the order requiring its performance." (p. 845.)

In the cases of Waters v. Garvin and Waters v. Clyne, 67 Kan. 855, 73 P. 902, actions were commenced to enjoin collection of taxes. Demurrers to answers were sustained, and judgments for costs were rendered thereon in favor of the plaintiffs. The board of county commissioners allowed the costbills, and ordered them paid, on condition the sums should be paid back if the judgments should be reversed. In dismissing the appeals the court said:

"If the board of county commissioners had intended to preserve the rights of the county to prosecute proceedings in error to this court, it should not have complied with the judgment of the court by paying the costs in the actions. After having done so there is no question open for dispute between the parties. The judgment of the court below having been complied with, nothing is left to litigate in this court. The conditions under which the costs were paid, that if the cases should be reversed and the costs collected from plaintiffs that they should be repaid to the county, does not serve the purpose of keeping the causes pending nor the judgments, the validity of which the board recognized by complying therewith, open." (p. 855.)

In the case of Fenlon v. Goodwin, 35 Kan. 123, 10 P. 553 the...