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Sharitt. Sections 28-54, pp. 702-706, Comp. Laws 1885. Section 72 of the Civil Code of this state expressly provides, the same as the Missouri Code, that "service may be made by publication in actions brought against a non-resident of this state, or a foreign corporation, having in this state property or debts owing to them, sought to be taken by any of the provisional remedies, or to be appropriated in any way." I think, however, that this court is foreclosed by its previous decisions, and that the rule stated in the concurring opinion cannot be adopted unless the prior cases are overruled.

In Railroad Co. v. Thompson, 31 Kan. 180, 1 Pac. Rep. 622, the railroad corporation was organized, and had its principal place of business, in Nebraska, but its line extended into this state. It was garnished in the courts of this state for a debt due to one of its employes for wages, at the suit of the creditor of the employe. The employe resided in Nebraska, had earned his wages there, and those wages were exempt to him and his family by the laws of that state. No service of process was had on the principal defendant. It did not appear where the plaintiff resided. The able district judge of Atchison county (Judge MARTIN) held in that case "that, under our statute, when a railroad company incorporated under the laws of a sister state leases a line of railroad in this state, and keeps local agents, and operates its lines, within this county, it is liable to the process of a garnishment here for all indebtedness which may be owing to a defendant, although, by the usual course of its business, such indebtedness is payable at the principal office of the corporation in the sister state; the corporation, in such case, being an inhabitant of this state for the purpose of business, and the service of process upon it, and the indebtedness not being of a local character, but enforceable in any jurisdiction in which service may be had." The railroad company prosecuted its writ of error to this court, and expressly made the point "that a foreign corporation cannot be garnished in this state, as the debtor of a non-resident, for a debt contracted and payable in a foreign state, by service on a servant or on the officers of the corporation." The judgment of the trial court was affirmed. Mr. Justice BREWER, speaking for the court, said: "He [the plaintiff] is a citizen of Kansas, appealing only to the laws and the courts of this state for the collection of his debt, and simply denying that the laws of another state shall prevent the collection of his debt according to the laws and procedure of his own state." The syllabus states the following proposition of law: "A foreign corporation coming into this state, and leasing property and doing business here, may be garnished for a debt due to one of its employes, although such employe is not a resident of this state, and although the debt was contracted outside of the state." At the time of the rendition of this decision, the members of this court

were Mr. Justice VALENTINE, Mr. Justice BREWER, and the writer. Mr. Justice BREWER delivered the opinion in this case. All of the justices concurred in affirming the judgment of the trial judge.

He

In Zimmerman v. Franke, 34 Kan. 650, 9 Pac. Rep. 747, Franke was perpetually enjoined from prosecuting garnishment proceedings in Nebraska against the Missouri Pacific Railway Company by Zimmerman, who was indebted to Franke, and who had personal earnings coming to him from the railway company. Both Franke and Zimmerman resided at Atchison, in this state; but Zimmerman was an employe of the railway company, running between Kansas City and Omaha. was the head of a family. Zimmerman was not personally served with any process in or from Nebraska, and Franke was proceeding, before the injunction, to collect his claim against Zimmerman, by garnishment in Nebraska, from the Missouri Pacific Railway Company. If the garnishment proceeding in Nebraska was without jurisdiction and void as to any debt or money coming or belonging to Zimmerman, why was this court asked to interfere with its strong arm to forbid Franke from carrying on a void and useless proceeding in Nebraska? That decision, as I understand it, was rendered upon the theory that, if Franke was permitted to prosecute his proceedings by garnishment in Nebraska, he would thereby deprive Zimmerman of his personal earnings, which were exempt under the laws of this state.

In Stark v. Bare, the latter was a married man, living in this state, and engaged in the service of the Atchison, Topeka & Santa Fe Railroad Company. He was indebted to Stark; and Stark, to evade the exemption laws of this state, sold his claim to John W. Leatherbury, of Kansas City, Mo., for the purpose of permitting Leatherbury to bring

an

action in Missouri, by garnishment against the railroad company, to appropriate the personal earnings due from the railroad company to Bare. This court sustained a judgment in favor of Bare against Stark upon the ground that the garnishment proceedings instituted by Leatherbury against the railroad company in Missouri deprived Stark of his personal earnings from the railroad company. This decision was also rendered upon the theory that the garnishment proceedings of Missouri deprived Bare, the employe, of the debt due from the railroad company to him in Kansas. Both of these decisions follow Snook v. Snetzer, 25 Ohio St. 516.

In Railroad Co. v. May, Id. 347, it was decided, as already stated, that, "in an action to recover money due on contract, it is a sufficient defense to show that the money sought to be recovered has been attached by process of garnishment, duly issued by a court of a sister state, in an action there prosecuted against the plaintiff by his creditors, although it appear that the plaintiff and such creditors are all residents of this state."

I do not think the decisions cited in the opinion, and in the concurring opinion, adversely to the views herein expressed, have very much application to this case.

In the cases of Railway Co. v. Maltby, 34 Kan. 131, 8 Pac. Rep. 235, and Railroad Co. v. Gough, 35 Kan. 1, 10 Pac. Rep. 89, about all that was decided was that, where the debt of the garnishee to the defendant is by the laws of Kansas and Missouri exempt, the debt is exempt in this state from garnishment, and no distinction is to be made between.residents and non-residents. In Bates v. Railway Co., 60 Wis. 296, 19 N. W. Rep. 72, a carload of hogs was attempted to be attached by garnishment. It was held in that case that 'property outside of the state is not the subject of garnishment under our statute, and that a common carrier cannot be held liable as a garnishee for goods in actual transit when the process is served." In Sutherland v. Bank, 78 Ky. 250, a carload of oats was attached, and the attachment was held wrongful, because the oats were beyond the jurisdiction of the court. In Wheat v. Railroad Co., 4 Kan. 370, an attempt was made to attach or garnish $300,000 of Leavenworth bonds, which were in the state of Missouri, and in the possession of the treasurer of the railroad company. Many of the other decisions cited in the concurring opinion are like these. Of course, no one contests but that these are the law as to the points decided; but the situs of personal property, like "hogs, oats, and bonds," is somewhat different to the situs of debts owing to employes and other persons. In Wright v. Railroad Co., 19 Neb. 176, 27 N. W. Rep. 90, the case was very similar to Railway Co. v. Maltby, supra, and disposed of the same way; that decision being fully cited and approved. Something, however, was said in that decision, and in several of the other cases cited, about debts not being liable to garnishment where the corporation or person garnished is not owing the debtor money payable in the state where the proceedings are commenced. Again, some of these decisions go to the effect that debts are local, and remain at the residence of the debtor. I need not review these cases, because they do not meet the question presented as to the jurisdiction of the Missouri court, under the laws of that state, over the debt of the railway company due to Sharitt. They are nearly all cases where the garnishment proceedings have been commenced and disposed of in the states where the decisions have been rendered. The decisions are constructions of garnishment laws of the state where the decisions have been rendered. The question whether proceedings in garnishment of a sister state are entitled to full faith and credit as a judgment, where the corporation or person owing the debt has been garnished in such sister state, and service has been made by publication upon the debtor, is not discussed in but one or two, and those cases are very different from this. I think, if Sharitt had brought his action in Missouri,

Where a case is tried before the court and a jury, and the jury render a general verdict, and make special findings, and the special findings appear to be slightly ambiguous, but do not appear to be in conflict with the general verdict, and the court renders judgment in accordance with the general verdict, held, in the absence of the evidence in the supreme court, the judgment of the court below will not be reversed.

(Syllabus by the Court.)

Error from district court, Harvey county; L. HOUK, Judge.

This was an ordinary condemnation proceeding instituted by the St. Louis, Fort Scott & Wichita Railroad Company to procure a right of way through certain lands in Harvey county, including a tract of land consisting of 200 acres, belonging to Lewis Noble. Eight and twenty-four hundredths acres of the land were taken for the right of way, and the remainder thereof was thereby injured. After the assessment of damages by the commissioners, Noble appealed to the district court, where the case was tried before the court and a jury; and the jury rendered the following general verdict; and, in answer to the following interrogatories, made the following special findings:

Verdict. "We, the jury impaneled and sworn in the above-entitled case, do upon our oaths find for the plaintiff, and assess the amount of his recovery at $2,650.00."

Special Findings. "(1) What was the actual market value of the land taken for right of way, without reference to the question of damages to the remainder of the farm? Answer. $329.60. (2) In addition to the value of the land taken, what was the amount of the real and actual damages to the remainder of the farm by reason of the taking of the strip of land by defendant for a right of way for its railroad? A. $2,320.40. (3) How much was the damage to that part of the farm north and east of the right of way? A. $1,492.24. (4) How much was the damage to that part of the farm south and west of the right of way? A. $828.16. (5) Was the railroad improperly constructed over plaintiff's farm in respect to drainage? A. No. (6) If you answer the last question in the affirmative, state how much damage you allow on account of such improper construction. A. (No answer.) (7) What, if anything, do you allow because sufficient crossings have not been put in on plaintiff's farm? A. Nothing. (8) How much damage, if any, do you allow plaintiff on account of the liability of fire being set by defendant's engines?

A. Nothing. (9) How much damage do you allow for injury to improvements on land taken, and how much for injury to improvements on lands not taken? A. First, $60; second, none, if the jury understand question. (10) How much damage, if any, do you allow for the inconvenience of crossing the railroad on plaintiff's farm? A. $500. (11) How much, if anything, do you allow for the inconvenience in farming plaintiff's land in shape in which it now is; and in what does that inconvenience consist? A. $1,643.90; and in loss of time. (12) What elements and sources of damage have you considered in making up the amount of your verdict? State fully. A. Destruction of crops, hedges, and trees; appropriation of land for right of way, and inconvenience of crossing track and farming the land in its present shape; and depreciation of the commercial value of the land; building of three crossings. (13) What was the market value of plaintiff's farm immediately prior to the locating of defendant's right of way through it? A. $8,000." The railroad company filed a motion for a new trial, which motion was overruled by the court; and the court then rendered judgment upon the verdict and special findings of the jury, awarding to Noble $2,650 as damages, and costs of suit. The railroad company brings the case to this court.

Ady & Nicholson and J. H. Richards, for plaintiff in error. Brown & Kline, for defendant in error.

VALENTINE, J., (after stating the facts as above.) The only question presented by the plaintiff in error, the railroad company, in this court, is stated in its counsel's brief as follows: "The amount awarded by the court upon the special findings of the jury was excessive."

The portions, however, of the special findings to which the counsel for the plaintiff in error particularly objects are those portions allowing $500 for the inconvenience of crossing the railroad on the plaintiff's farm, and $1,643.90 for the inconvenience and loss of time in farming the plaintiff's land in the shape in which it was left by the appropriation of the right of way. These damages, in fact, include nearly all the damages that could be allowed as damages to the land not actually taken, but not all. Whether these amounts are excessive or not, we do not know, and cannot tell; for none of the evidence upon which the jury made their findings has been brought to this court. The special findings of the jury appear to be slightly ambiguous. But still we cannot say that they are in conflict with the general verdict; and, if they are erroneous in any particular, we cannot say in what particular. Under the interrogatories presented to the jury for findings, they could not have found and stated separately the precise amount of each and every item or element of damage which they had a right to consider, and which they evidently did consider, for the interrogatories did not call for such findings; and they

did not attempt to state in their findings the amount of each and every element of damage which they in fact did consider. They considered the "destruction of the crops, hedges, and trees," and we must, of course, presume, in the absence of the evidence, that there was evidence authorizing the jury to consider these matters; and, if these crops, hedges, and trees were upon the land actually appropriated for the right of way, the jury had the right to so consider them. Comp. Laws

1885, c. 23, art. 9. § 86. But what amount is allowed for these matters is not stated. The jury also considered the "depreciation of the commercial value of the land." We suppose that the jury, by using the words "commercial value," meant the market value; and the market value of the land is affected by everything that would tend to make the land more or less valuable. In estimating the market value of the land, or the depreciation of the market value thereof, the jury had the right to take into consideration, among other things, the symmetry and beauty of the land before the right of way was appropriated, and the destruction of that symmetry and beauty by the appropriation. Whether the jury took into consideration these things or not, we cannot tell; and what, if anything, was allowed for these things, we cannot tell.

Indeed, from anything presented to us by the record in this case, we cannot say that any material error was committed by either the jury or the court in the trial of the case in the court below. The judgment of the court below will therefore be affirmed, all the justices concurring.

(1 Wash. St. 179)

SCAMMON . Ward. (Supreme Court of Washington. Feb. 28, 1890.) MORTGAGES - PRESENTATION OF CLAIM AGAINST MORTGAGOR'S ESTATE.

1. Failure to present against a decedent's estate a claim secured by a mortgage on his land, within a year after notice to present their claims is given to creditors of the estate, under Code Wash. T. § 1467, which provides that claims shall be barred unless so presented, cannot affect the mortgagee's right to subject the mortgaged land to payment of his debt, though it will bar his right to have decedent's other estate applied on any deficiency that remains after exhausting the land.

2. Where the owner of a mortgage on lands of a decedent applies to the probate court, under Code Wash. T. § 1523, to have the mortgage redeemed out of the personal assets of the estate, or, in the alternative provided by section 1524, to have the land sold and the proceeds applied on the debt, he must apply within the year allowed by section 1467 for presentation of claims against the estate of a decedent.

Appeal from district court, Klickitat county.

William G. Ward, during his life-time, made his promissory note in favor of Justin Scammon for $1,500, and secured the payment thereof by a mortgage on certain real estate. Said William G. Ward died, and on the 22d day of August, 1887, Elizabeth Ward, his widow, was appointed executrix of his will, and qualified as such on the 27th day of