final decree, and an appeal may be taken from any final decree, whatever its nature, and from any part thereof. The fact that the court below may modify the decree so far as the children are concerned does not deprive the defeated party of her right to have this court say whether the judgment of the court below is correct. Such party is not bound to wait for the court below to change its judgment. The cases cited upon the proposition that the appellate court will not disturb the action of the court below in exercising its discretion in such matters have no bearing on the question as to whether the order is appealable. paper must be deposited in the post-office, addressed to the person on whom it is to be served," is the language of the section (1013) which directs how service by mail is to be made. There is nothing in the language of this or any other statute indicating an intention on the part of the legislature to require the party making the service to deposit the paper in any particular one of the post-offices of this state having regular mail communication with the place to which the paper is to be sent. There can be no good reason assigned for such a construction, or for such a provision. The fact that under the construction which we give to the section the paper may be sent from a place in the central part of the state to one end of the state, and there mailed to the party to be served living in the other end of the state, is a thing not at all likely to occur, and could not prejudice the rights of the respondent if service should be 2. The attorney who served the notice of appeal resided and has his office in the city of San Francisco, and the attorneys for respondent reside in Martinez, Contra Costa county. The notice was served by depositing it in the post-office at Oakland, with postage prepaid, and addressed to the attorneys for respond-made in that way. It is provided that "the ent at Martinez. It is claimed that the service was ineffectual, because the notice was not mailed at San Francisco, and the case of Reed v. Allison, 61 Cal. 461, is relied on in support of the contention. That case had been tried in the city of San José, and the attorney for appellant, being in that place on business, served the notice of appeal personally on the respondents residing there, and mailed notices to the other respondents. The attorney for appellant resided at San Rafael, Marin county. The court held that the attempted service upon the respondents residing at Redwood City, San Francisco, and other places, except at San José, was void; and, it being an action of partition, and necessary to have all the parties before the court, the appeal was dismissed. We think that case and Murdock v. Clarke, 73 Cal. 25, 14 Pac. Rep. 385, which followed it in department, should be overruled. The decision in Reed v. Allison was based upon a construction of sections 1012 and 1013, Code Civil Proc., which in our opinion is not warranted by the language of those sections, and upon cases which do not support the conclusion reached. As was said in that case, "the conditions involved in the fact of service by mail are: (1) That the person making the service and the person on whom it is to be made reside or have their offices in different places; and (2) that there shall be a regular mail communication between the places.'" Those conditions existed in that case. The attorney for appellant and the respondents and their attorneys resided in different places, and there was regular mail communication between all of the places. The statute does not in terms require the notice to be deposited in the post-office at any particular place, the essential things being simply residence in different places, (if the parties reside in the same place the service should and must be personal,) and the fact of regular mail communication between the place where it is mailed and the place to which it is sent. "In case of service by mail, the notice or other service is complete at the time of the deposit, but if, within a given number of days after such service, a right may be exercised or an act be done by the adverse party, the time within which such right may be exercised or act be done is extended one day for every twenty-five miles distance between the place of deposit and the place of address." The rights of respondent are thus carefully preserved against any abuse by the moving party of the privilege given him. On the other hand, it may often happen, as it did in Reed v. Allison, that the attorney for appellant is engaged in preparing his appeal at a place other than his residence or office. What good reason can be given for requiring him to mail the notice from the place in which he resides, especially where such place is further from the place to which the notice is to be sent than the place where he is engaged at the time? This case was tried in Oakland, and the notice was deposited in the post-office at that place, which is nearer Martinez than San Francisco is. It would be an absurd requirement which would compel the person making the service to perform the act in San Francisco, which could be done as effectually, and with more convenience and expedition and less risk, in Oakland. But it is sufficient to say that the statute does not require that the deposit should be made in the place where the party making the service resides. The cases of Corning v. Gillman, 1 Barb. Ch. 649, and Moore v. Besse, 35 Cal. 184, do not sustain the reasoning in Reed v. Allison, supra, so far as the question before us was involved. In Corning v. Gillman the decision was upon the ground that the fourteenth rule of the court required the notice to be deposited in the post-office where the moving party resided. The rule is not reported. In Moore v. Besse the court decided that a party relying upon substitute service by mail must show that he and the person upon whom service is made reside in different places. They may have resided in the same place, in which event personal service was necessary; and no presumption arises from the fact that a case is tried in a particular place that the attorney of the moving party resides there. That is all the court decided in that case which bears on the question before us. There is no merit in the contention that Kierce was not substituted as an attorney for appellant in the place of her former attorney, Smith, and that the notice and service are without authority and void. The substitution was duly made, and notice thereof given to the attorneys for respondent. Motion denied. We concur: BEATTY, C. J.; MCFARLAND, J.; Fox, J.; SHARPSTEIN, J. (84 Cal. 221) THOMAS v. BLACK. (No. 12,635.) (Supreme Court of California. May 31, 1890.) REPLEVIN-EVIDENCE-CONTINUANCE. 1. In an action against a sheriff to recover per sonal property levied on in plaintiff's hands as hav ing been fraudulently conveyed to him by a defendant in divorce proceedings to evade the payment of a judgment therein, evidence of ill treatment and abuse of his wife, which was the ground of the divorce, is inadmissible, as irrelevant and as having a tendency to prejudice plaintiff's case. 2. On the granting of a continuance, the testimony of witnesses in attendance, taken by the judge in the form of a deposition, under Code Civil Proc. § 596, and reduced to writing by a stenographer, but not read over to, corrected, or signed by the witnesses, nor certified by the judge, does not constitute a deposition, within the requirements of section 2032. Appeal from superior court, San Benito county; JAMES F. BREEN, Judge. Hudner & Dooling and Montgomery & Scott, (T. H. Campbell, of counsel,) for appellant. N. C. Briggs, for respondent. MCFARLAND, J. This is an action to recover certain personal property, or its value, alleged to have been purchased by plaintiff from one Joaquin S. Serpa. Maria L. Serpa, former wife of said Joaquin, had obtained a divorce from the latter, and a judgment for $290, as costs, attorney's fees, etc. On this judgment an execution had issued, and the original defendant, Ross, (now deceased,) as sheriff, had, under said execution, levied on said personal property as the property of said Joaquin, when this action was commenced by plaintiff, and the property replevied from the sheriff. Defendant averred that the property was the property of said Joaquin, and that the attempted sale from Joaquin to plaintiff was fraudulent, and for the purpose of hindering and defrauding said Maria, etc. The verdict and judgment were for defendant, and plaintiff appeals from the judgment, and from an order denying a new trial. In the mean time, Ross died, and his administrator was substituted as defendant. The respondent was allowed, over the objection of appellant, to prove by three different witnesses that, when Joaquin Serpa was married to his wife, Maria, he had a loathsome private disease; that he married her for the purpose of curing himself, by transmitting the disease to her; that such was the result of the marriage; and also that during the marriage he cursed, kicked, and struck his wife. It is quite evident that the allowance of this testimony was error. It had no bearing on the question whether the alleged sale from Joaquin to plaintiff was valid, and it clearly prejudiced plaintiff's case by inflaming the minds of the jury against his asserted grantor. For this reason a new trial must be granted. There are one or two other questions to be noticed. Appellant contends that the answer does not contain a sufficient statement of the facts which constitute the fraud, and the hindering the creditor, and, particularly, that it does not state that the property in question was the only property of Joaquin out of which the execution might have been satisfied. But no question of that kind was raised in the court below; and both parties introduced evidence, without objection, on the issue of fraud, and as to the point whether Joaquin had other property. Under these circumstances, we would not reverse the judgment for this objection to the answer, raised here for the first time. Some declarations of Joaquin made after the sale were improperly admitted. The testimony of the witnesses M. V. Silva and Frank Martin was improperly admitted. The case had been set for trial for March 23d; but on March 21st the court, at plaintiff's instance, made another order, setting it for April 6th. On March 23d the defendant came into court with the witnesses Silva and Martin, and insisted that the trial should proceed, and that if it should be continued the testimony of the said witnesses should be taken in the form of depositions, because the real defendant was poor, and could not get the witnesses there again. Thereupon the court set aside the order resetting the trial for April 6th, and ordered that the case be continued until April 6th, and that, as a condition of the continuance, the testimony of said two witnesses "be taken at this time, by. and before the court, in the form of a deposition, by questions and answers, and that the evidence be taken by the short-hand reporter." To all of this, plaintiff objected. The testimony of the two witnesses was then taken by the short-hand reporter, but was not read over to the witnesses, or corrected or signed by them. On the trial of the case, which was before a jury, a transcript of this testimony, or what purported to be such a transcript, but not certified by the reporter, or by any other person, was offered in evidence and admitted over plaintiff's objections that it had not been read to the witnesses, nor subscribed by them, nor certified by the oflicer taking the depositions as required by the Code, nor certified by the report as a correct transcript of his notes. There no doubt can be a valid condition to a continuance that the testimony of witnesses in attendance shall be taken, but this must be done in the manner prescribed by the Code; and the Code We concur: SHARPSTEIN, J.; Fox, J. (43 Kan. 666) RICH . LAPPIN. (Supreme Court of Kansas. May 10, 1890.) TRIAL INSTRUCTIONS-WRITING-DICTATION. The district court must give its instructions to the jury in writing, when requested so to do by either party; and the giving of them orally, and having them taken down by a stenographer, and after the jury has retired having them written out by the stenographer, is not sufficient. (Syllabus by the Court.) Error from district court, Comanche county; C. W. ELLIS, Judge. Denton & Jones, for plaintiff in error. W. A. Taylor and C. E. Elliott, for defendant in error. whereupon the court delivered his instructions orally, the stenographer taking them down and writing them out after the jury had retired; to all of which the defendant duly objected and excepted at the time." We think the court below erred. Section 275 of the Civil Code, so far as it is necessary to quote it, reads as follows: "The court shall give general instructions to the jury, which shall be in writing, and be numbered and signed by the judge, if required by either party. * * *All instructions given by the court must be signed by the judge, and filed together with those asked for by the parties as a part of the record." In this connection see the following cases: State v. Potter, 15 Kan. 303; City of Atchison v. Jansen, 21 Kan. 560. There are other errors assigned, but we do not think that the court below committed any error, except in refusing to give to the jury written instructions. For this error the judgment of the court below will be reversed, and cause remanded for a new trial. All the justices concurring. (43 Kan. 676) BOARD COUNTY COM'RS LYON Co. v. Co- (Supreme Court of Kansas. May 10, 1890.) In the trial of an action for damages for the location of a public highway, on appeal from the board of county commissioners, when an objection is first made, after the trial has commenced, that the action could not be maintained by the plaintiffs jointly, held, that the objection comes too late, that a defect of parties must be taken advantage of by demurrer or answer. (Syllabus by the Court.) Error from district court, Lyon county; CHARLES B. GRAVES, Judge. J. Jay Buck and A. M. Flory, for plaintiff in error. Kellogg & Sedgwick, for defendants in error. VALENTINE, J. This was an action brought before a justice of the peace of Comanche county by J. C. Lappin against GREEN, C. This was an appeal to the disH. H. Rich, to recover $60, which the plain-trict court of Lyon county from an allowance tiff alleges he had to pay to the defendant to procure the release from the sheriff of the county of two mules in which the plaintiff had an interest, and which had been wrongfully seized by the sheriff at the instance of the defendant. After judgment in the justice's court, and an appeal to the distriet court, the case was tried before the district court with a jury, and at the conclusion of the plaintiff's evidence the defendant demurred to both the plaintiff's bill of particulars and the evidence, upon the ground that neither disclosed facts sufficient to constitute a cause of action, which demurrer the court overruled; and then the defendant requested the court to give written instructions to the jury, which the court refused. The record upon this subject, so far as it is necessary to quote it, reads as follows: "Whereupon the defendant requested the court to give written instructions to the jury in said cause; made by the board of county commissioners for damages awarded by reason of the location of a road through the land of the plaintiffs below. The defendants in error presented their claim for damages to the view| ers, and were allowed $190.50. This allowance was reduced by the board of county commissioners to $100, on a hearing before the board as to the amount the plaintiffs below were entitled to recover. The order of allowance was made to the plaintiffs below jointly, and from this allowance they appealed to the district court. Upon the trial the defendant below objected to the introduction of any evidence, because the plaintiffs had no joint interest in the subject-matter of the action, and were improperly joined. This objection was overruled. plaintiffs then introduced their evidence, and the defendants moved to dismiss the case, for the reason that the action was improperly The brought, and because the plaintiffs had no joint interest in the subject-matter of the action, and were improperly joined as parties plaintiff and defendant. This objection was also overruled and excepted to, and the defendant then asked the following instruction, which was refused and excepted to: "If you believe from the evidence that previous to the laying out of the road in question, and ever since, Mary M. Coman owned one of the quarter sections, and C. W. Coman owned the other, and the road is laid out partly on each, then each one would have a right to sue for damages, if damaged in fact, but they cannot maintain a joint action.” These are the only errors complained of. We think the defendant below has mistaken its remedy. No objection was made to the plaintiffs' claim, on account of there being a defect of parties, until the case was on trial in the district court. They presented their joint claim for damages to road-viewers, and had it considered, and, upon the report of the viewers being accepted by the board of county commissioners, had the same considered there, without objection, and allowed to them jointly. While no pleadings are necessary in an action of this kind, we think the defect of parties should have been raised by proper pleadings, before the case was on trial. The plaintiffs' claim for damages could be regarded as a petition, and, if there was a defect of parties, it could have been raised by demurrer or answer. Failing to do that, the defendant below waived the question. Section 91 of the Code provides: "When any of the defects enumerated in section eighty-nine do not appear upon the face of the petition the objection may be taken by answer; and if no objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, except only the objection to the jurisdiction of the court, and that the petition does not state facts suflicient to constitute a cause of action." If the position of the defendant below be correct, then it would have been but fair to the plaintiffs to have raised the question at the proper time, and, if sustained, the court could have permitted the plaintiffs to amend by filing separate petitions, under section 92 of the Code, which reads: "When a demurrer is sustained, on the ground of misjoinder of several causes of action, the court, on motion of the plaintiff, shall allow him, with or without costs, in its discretion, to file several petitions, each including such of said causes of action as might have been joined; and an action shall be docketed for each of said petitions, and the same shall be proceeded in without further service." All of the objections made by the defendant below came too late. It is well settied by numerous decisions of this court that a misjoinder or a defect of parties is waived, if not taken advantage of by demurrer or answer. Simpson v. Greeley, 8 Kan. 586; Parker v. Wiggins, 10 Kan. 420; Thomas v. Reynolds, 29 Kan. 304; Woodman v. Davis, 32 Kan. 344, 4 Pac. Rep. 262. The question properly triable in this case was the amount of damages the plaintiffs had sustained, and this question was fairly submitted to the jury. We therefore recommend that the judgment of the court below be affirmed. PER CURIAM. It is so ordered; all the justices concurring. (43 Kan. 750) UNION PAC. RY. Co. v. FRAY. (Supreme Court of Kansas. May 10, 1890.) MASTER AND SERVANT-NEGLIGENCE-DEFECTIVE MACHINERY. 1. A railway company is liable to a laborer, working at a derrick of the company, assisting in hoisting stone and giving signals, for injuries caused by the negligence of the foreman, whose duty it was to direct repairs and keep the derrick in safe condition, if such laborer is without fault. 2. As between a railway company and its employes, the railway company is required to exercise reasonable and ordinary care and diligence in furnishing to its employes reasonably safe machinery and instrumentalities for the operation of the work in which they are engaged. 3. As between a railway company and its employes, the company is negligent in the use of unsafe or defective machinery, where it has notice of the defect, and fails to exercise reasonable and ordinary care in remedying such defect. 4. Findings of fact, if supported by sufficient evidence, will be construed so as to support the verdict, if such a construction can be fairly given, and all findings are to be harmonized, so far as possible. (Syllabus by the Court.) Error from district court, Wyandotte county; O. L. MILLER, Judge. On the 24 day of February, 1883, William Fray brought his action against the Union Pacific Railway Company for damages for personal injuries. Trial had again on the 14th day of December, 1887, before the court with a jury. The jury returned a verdict for Fray, and assessed his damages at $2,000. The following interrogatories were asked, and answered by the jury: "(1) Who was the foreman controlling the men at the derrick? A. William Ulrich. (2) On the day of the accident, and before it occurred, did Nelson tell Ulrich that the brake rope was unsafe? A. Yes. (3) How far down had the rock that broke the rope descended from the platform when the rope broke? A. From seven to ten feet. (4) How far was it from the platform to the bottom of the pit where the rock was being placed? A. About forty-two feet. (5) Was it the duty of Fray to give signals when the rock was being lowered? A. Yes. (6) If Fray was to give signals when the rock was being lowered, who assigned him the duty? A. Wm. Ulrich. (7) Did the wear and the use of the brake rope for too long a time cause it to break, or tend to do so? A. It did. (8) On the day of the accident, did Ulrich tell Nelson to go on with the brake rope after being told by him that it was unsafe? A. Yes. (9) Where was Fray at the time of the accident, and what was he doing? A. On the platform, giving signals." Upon the request of the railway company, the jury answered the following questions: "(1) Did Samuel Mallison, for the defendant, have the control and direction of the work, the way and manner of its performance, including the derrick and its apparatus, where the plaintiff was injured? A. He did. (2) Was not William Ulrich foreman of the work under Samuel Mallison? A. He was. (3) Was the plaintiff, either by himself or others, informed by Mr. Mallison, acting for the defendant, that there was danger of the brake rope burning in letting the rock down into place, if the rope was not kept wet? A. No. (4) Was the plaintiff, either by himself or with others, informed by William Ulrich that there was danger of the brake rope burning in letting down the rock into place, if the rope was not kept wet? A. No. (5) Did not Samuel Mallison, at or about the commencement of the work for the defendant, ask the plaintiff to get a bucket of water to be used in watering the brake rope? A. Yes. (6) Did not Samuel Mallison, at or about the commencement of the work on this bridge, direct the plaintiff to pour water on the brake rope so as to keep it wet while rock were being lowered? A. No. (7) If the brake rope had been kept wet where it wound around the shaft, would it have burned? A. No. (8) Did the plaintiff obey the directions of Mallison in respect to keeping the rope wet? A. No. (9) Was not the plaintiff warned by Samuel Mallison to be careful, and see that the brake rope was kept wet while rock was being lowered by the derrick to the work below? A. No. (10) Was not the plaintiff warned by William Ulrich to be careful and see that the brake rope was kept wet while rock was being lowered by the derrick to the work below? A. No. (11) Was not the injury to the plaintiff caused by the burning of the brake rope? A. Yes; in part. (12) Would the brake rope have burned if it had been kept wet? A. No. (13) Did any one for the defendant direct the plaintiff not to observe the directions given him by Mal-, lison in respect to keeping the rope wet? No. (14) If you answer the preceding question in the affirmative, name the person who gave such direction, and state what he said? A. (No answer.) (15) Was not the plaintiff provided with a bucket of water to be used in wetting the brake rope? A. Not proven that he was. (16) Was he not supplied with a proper vessel for applying water to the brake rope? A. Not proven that he was. (17) Was not water flowing near by which the plaintiff could get to wet the rope? A. Not proven. (18) Was not the brake rope put on new the day of the accident or the day before? A. No. (19) Was not the brake rope of size and strength sufficient for the purpose of controlling the lowering of the rock by the derrick? A. It was large and strong enough when new. (20) Had not the A. defendant close at hand upon the work a large quantity of new rope from which brake ropes were to be taken as often as necessary? A. Yes. (21) Did not Fray, upon one or more occasions, on other days prior to the accident, pour water on the brake rope while rock was being lowered? A. Not while rock was being lowered. (22) Did not Nelson, upon one or more occasions, upon other days prior to the accident, while rock was being lowered, before plaintiff was injured, pour water on the brake rope? A. No; not while rock was being lowered. (23) Did not Owens, upon one or more occasions, upon other days prior to the accident, while rock was being lowered, before plaintiff was injured, pour water on the brake rope? A. Owens did on one occasion pour water on rope, but it is not shown that it was done while rock was being lowered. (24) Was not Fray present when Nelson poured water on the brake rope? A. We have no such evidence. (25) Was not Fray present when Owens poured water on the brake rope? A. He was on the platform. (26) For what purpose did Fray pour water upon the brake rope when rock was being lowered? A. He did not pour water while rock was being lowered. (27) Was not the plaintiff, Fray, either by himself or with others, warned by Mallison that it was unsafe for rock to be lowered upon this work, the distance it was necessary to lower it, if the brake rope was not kept wet? A. No. 28 and 29 withdrawn. (30) Was not the brake rope perfectly dry at the time of the injury? A. Yes. (31) Were not four or five stones lowered after dinner on the day plaintiff was injured, and before he was injured, with the same brake rope that afterwards broke, without said brake rope being wet? A. Several stones were lowered, and no evidence that rope was wet. (32) Was not the breaking of the brake rope caused by the burning of it from friction with the journal around which it was wound? A. The breaking was caused by the burning and wearing. (33) How long would a new brake rope last upon the work in question if it was kept wet? A. Probably three or four days. (34) Was it safe to lower rock the distance it had to be lowered on this work without keeping the brake rope wet? A. Yes; if rope were changed before becoming danger. ous. (36) Was not the rock to be lowered on the work in question lifted from a car on a side track south of the main track with hooks suspended on a rope and chain from the end of the boom? A. It was. (37) Was not the rock which fell so lifted? A. It was. (38) Was not the rock, after being lifted from the car, swung round, suspended from the end of the boom until it reached the point where it was to descend? A. It was. (39) About how far-how many feet-was it swung round before it started to descend? A. About forty feet. (40) Did not plaintiff know that it was dangerous to use the brake rope if it was not kept wet? A. No." The railway company filed its motion for a |