Kan.) SHORT v. FOGLE. pany; and permitting trees to grow upon rially the view of the track and of approaching trains by persons about to cross the railroad, on the crossing in question, and that but for such obstruction the injury in question would not have happened, then the company is liable in this case for the injury so caused, unless you further believe from the evidence that plaintiff's own negligence contributed directly to the injuThe bill of particulars expressly alleged ry." The court also, at the request of the railroad company, submitted certain ques- that "if the whistle had been sounded, as tions of fact to the jury. The eleventh and prescribed by law, the person in charge of twelfth questions and answers are as fol- the stock could have prevented the injulows: "(11) Did the person in charge of ry." Yet, under the instructions of the these cows take any precautions as she ap-court, the jury were permitted to return a proached this crossing to ascertain wheth- verdict against the company, without reer any train was coming or not, prior to gard to whether the whistle sounded or letting the cattle get upon the crossing? not. The jury made a great many special Answer. Yes. (12) If the jury answer the findings, but they made no finding, howevlast question affirmatively they may state er, that there was any failure of the comfully what acts the person in charge of the pany to sound the whistle to its locomocattle did towards ascertaining, or what tive. In addition, the jury specially found steps she took to find out whether a train that the person driving the stock was on was coming or not. State fully. A. We horseback; therefore she might, as she apbelieve that she took the same precau- proached the crossing, have ridden ahead tion that she did in always crossing,-by of the stock, and ascertained if any train listening and looking as far as she could. was coming, before she started the stock The defendant being behind time with its across the track. train, it was as much the defendant's place to use an extra precaution on the part of the train, being off time, to give an extra signal; furthermore, the defendant was negligent in leaving the hedge in the condition it was to prevent the seeing or hearing the approach of the train." The judgment of the district court will be reversed. VALENTINE, J., concurring. JOHNSTON, J., dissenting. SHORT V. FOGLE. (42 Kan. 349) (Supreme Court of Kansas. Oct. 5, 1889.) Where T., the equitable owner of real es tate, gave a mortgage to R., with a full knowledge by R. of the condition of the title, and with the furgage thereon for the original purchase money of ther knowledge that one F. held the prior mortthe property, and R. afterwards transfers his mortgage to S., giving S. the information that there is another mortgage upon the property, and S., with this knowledge, makes no inquiry as to the title of the property, and makes no examination of the recprior liens as between F. and S., F. is entitled to ords, held, in an action to foreclose and establish the prior lien on the property. (Syllabus by Clogston, C.) Commissioners' decision. Error from district court, Franklin county; A. W. BENSON, Judge. It is claimed that the jury in these answers required of the defendant, under the circumstances, a duty not shown by the evidence, and that by reason of that fact the motion for a new trial ought to have been granted. It seems to us that this case was decided by the jury upon the ground that the railroad company was negligent in permitting a hedge to be grown upon its right of way, so as to obstruct materially the view of its track and approaching trains, and not upon anything else. An instruction was given imputing negligence to the railroad company, on account of the hedge upon its right of way, and the jury specially found the company was negligent in leaving the hedge in the condition it was in. All the evidence shows that both the This was an action originally brought plaintiff and his daughter, who was in charge of the stock, were well acquainted with the crossing, and knew of the hedge, by Fogle, defendant in error, against Towle The hedge and wife and E. P. Short, the plaintiff in its height, and its condition. was from 15 to 25 feet on the right of way, error, to foreclose a mortgage on certain and 25 to 35 from the track. If the hedge real estate in the town of Williamsburg. in any way prevented the person in charge The Towles made default, and the plaintiff of the stock from seeing or hearing the ap- in error, Short, filed an answer and cross-peproaching train, then, of course, being well tition, alleging a mortgage upon the same acquainted with the hedge and the prem- property, and asked to have the same foreises, additional precaution should have closed, and made a prior lien to plaintiff's been taken to see if any train was coming. mortgage. At the November term of the We think the instruction concerning the Franklin county district court the cause hedge upon the right of way was mislead- came on to be heard upon the petition and ing, and that the verdict was returned up- cross-petition. Trial by the court without on a wrong theory. If the growing of a a jury, and the following findings of fact high hedge upon a right of way near a pub- and conclusions of law were made: "(1) lic crossing is negligence on the part of the On April 20, 1885, D. Fogle, plaintiff, was railroad company, as to a traveler or per- the owner of the property described in the son upon a public highway, and thorough- petition, which was then unimproved. On ly familiar with the hedge, the crossing, that day he entered into a written agreeand adjoining premises, then, also, a high ment with one Marcoux to sell and convey fence inclosing a railroad track would be the same, together with a quantity of luman act of negligence on the part of the com-ber with which to erect a house thereon, for the sum of $150, to-wit, $50 for the lots | lien on said property, and that said defend. and $10 for the lumber. Mr. Marcoux ant Short's lien under the mortgage set out agreed to erect the house and pay said in his answer is the second and junior lien sum, with interest, and then Fogle was to thereon. (4) That a judgment of foreclosmake the deed. Mr. Marcoux went into ure and sale should be entered, and the propossession and built the house, but did not ceeds applied, after paying the taxes and pay said $150 and interest, or any part costs, to the satisfaction of said liens, acthereof. (2) In February, 1886, the defend-cording to the priorities as above stated." ant Towle made an agreement with said John W. Deford, for plaintiff in error. Marcoux whereby Towle transferred to Mechem & Sınart, for defendant in error Marcoux a certain team of horses, (which he had previously mortgaged to W. A. RobCLOGSTON, C., (after stating the facts as bins for $300,) and agreed to pay $225 in above.) The plaintiff in error now comaddition thereto forsaid property. There- plains that the conclusions of law are not upon Mr. Marcoux proposed, and it was supported by the findings of fact made by agreed, that Towle should pay said $225 the court. The findings of fact show that to Fogle in satisfaction of said Fogle's Fogle was the original owner of the propclaim of $150 and interest, and take the deed erty, and that the mortgage, the subject of direct from Fogle. Accordingly, on March his action, was for the purchase money of 1, 1886, Mr. Towle executed the note set out the property. Marcoux transferred the in plaintiff's petition and accompanying property to Towle, subject to this lien for mortgage, (except the acknowledgment,) the purchase money, and subject to Fogle's and Mr. Fogle also executed said deed of mortgage. Towle had actual knowledge conveyance to Towle on the same day, (ex- of the existence of that mortgage, and ascept acknowledgment,) and said papers sumed it or took the property subject to it. were then deposited with Mr. M. V. Swift, He executed the mortgage now set up by a notary public and conveyancer, to hold Short, and informed Robbins of the exact until said mortgage was duly executed by condition of affairs. Towle at this time the wife of said J. A. Towle and properly had but an equitable title to the property. acknowledged, to the satisfaction of said He had what Marcoux could transfer to Fogle, whose said deed should be acknowl- him, an equitable title, only; and at the edged, and the papers delivered to the re-time of the execution of the mortgage to spective grantors. All this was done on July 17, 1886, and on July 22d, following, said deed and mortgage were duly recorded; the deed being first of record, to-wit, the deed at 11 A. M., and mortage at 3 P. M. (3) Learning of the transfer of the mortgaged team to Marcoux, Mr. Robbins called on Towle, and demanded pay or security, and was offered a mortgage on the said real estate. Thereupon, on April 1, 1886, the note and mortgage set out in the answer of E. P. Short were made and delivered to Robbins. At that time Robbins was in-gage instead of Short. We therefore fail to formed and understood that there was a prior mortgage on the property of $150 or $200 to Fogle, but did not examine the record. Mr. Marcoux was in possession at the time of sale to Towle, and delivered possession to the latter. This mortgage to Robbins was duly recorded on the 8th day of May, 1886. (4) On March 19, 1887. Mr. Robbins sold and assigned his said note and mortgage to defendant E. P. Short for $300, paid as follows: $25 in a week after the assignment, and $25, June, 1887, and the balance the day of this trial. (5) At the time of the transfer to Short, Robbins informed him that there was another mort Robbins he could give Robbins no better title than he himself had. When Robbins transferred his note and mortgage to Short, he could give Short nothing better than he himself had. He told Short, however, that there was another mortgage upon the property. Short made no inquiry to ascertain its standing or condition. He received under the notice whatever title and right Robbins had, and no greater. He stands in the same place that Robbins would have stood had he set up the mort see what legal or equitable right the plaintiff in error has to insist upon a first lien upon this property. The judgment of the court below was correct, and we therefore recommend that the judgment be affirmed. PER CURIAM. It is so ordered; all the justices concurring. (42 Kan. 364) HILL V. FIRST NAT. BANK. (Supreme Court of Kansas. Oct. 5, 1889.) REPORT AND CASE MADE. 1. An order fixing the time when a case made shall be settled and signed should be observed, and the party making a case, who ignores such an order, does so at the peril of a refusal to settle and sign the case at a later time; but, notwithstanding the order may have been so disregarded, it is within the power of the court or judge to thereafter, and upon reasonable notice, settle and sign the case. gage to Fogle, but that his was on record first. Mr. Short did not examine the record, but relied on Robbins' statement that his mortgage was first on record. (6) When Fogle delivered the deed to Towle and accepted the mortgage from the latter, he knew of the mortgage before that time made to Robbins." And upon these facts the court found the following conclusions of law: "(1) That plaintiff is entitled to a judgment against J. A. Towle for the amount of his said note, to-wit, $270.75. (2) That E. P. Short is entitled to a judgment against J. A. Towle for the amount 3. When a case made has been materially of his said note, to-wit, $358. (3) That the changed long after it was settled and signed by the plaintiff's lien under the mortgage set out judge, and attested and filed by the clerk of the in the petition is the first and paramount)district court, and its verity thereby destroyed, it 2. In order to have the question of whether the evidence supports the findings and judgment examined, the case made should show that it contains all the evidence. A statement to that effect in the certificate of the district judge settling the case is insufficient. Eddy v. Weaver, 37 Kan. 540, 15 Pac. Rep. 492. is not entitled to consideration in a proceeding in time. Hammerslough v. Hackett, 30 Kan. error. (Syllabus by the Court.) Error from district court, Mitchell county; CLARK A. SMITH, Judge. A. W. Hicks and J. H. Antrobus, for plaintiff in error. A. H. Ellis, for defendant in error. JOHNSTON, J. The parties to this proceeding own adjoining lots, on which buildings have been erected, that are united by a party-wall. By agreement of the parties a common stairway was to be erected between the buildings, which was to serve as an entrance from the street to the second stories of both buildings. A dispute arose between them as to the rights and liabilities of each, in respect to the stairway and landing, and the bank brought an action to settle this dispute, and to enjoin Hill from obstructing the bank in the reasonable use of the stairway and landing which has been erected. The action was tried by the court at the January term, 1887, when a decree was rendered in favor of the bank, and Hill, as plaintiff in error, asks for a review and reversal. It is now insisted by the defendant in error that nothing is presented by the record for our determination. Attached to the petition in error is a case made, which it is argued should not be considered, because it was not settled and signed at the time fixed by the court. When the decree was given, time was asked in which to make a case for the supreme court, and the court granted the application, and fixed the time when the case should be made and served; also the time within which amendments should be suggested; and further ordered that the case should be settled and signed on the first day of the succeeding term of court. The case was made and served, and the amendments suggested within the prescribed times, but was not presented for settling and signing on the day set for that purpose. When it was presented counsel for defendant in error objected to the jurisdiction of the court, claiming that Hill, having procured an order fixing the time of settlement, is bound by the terms of the order. The court, for reasons which it deemed sufficient, extended the time for settling and signing the case, but required that five days' notice should be given to the opposing party. This was done, and in pursuance of that notice the case was settled and signed, both parties being present, although counsel for defendant in error still insisted that the plaintiff in error had forfeited his right to have the case settled and signed. It was certainly within the power of the court to settle and sign the case, although the time first fixed by its order had expired. When the case is not made and served within the prescribed time, and no extension of time has been granted, the court is without power to act, (Insurance Co. v. Koons, 26 Kan. 215;) but this ruling is based on the ground that the statute limits the time within which a case must be made and served. No such limitation exists with respect to settling and signing a case, and hence the court may postpone such action, and cause it to be done, upon reasonable notice, at a later 57,1 Pac. Rep. 41. A very different question would arise if the court had declined to set tle and sign the case. An order of the court fixing the time for such action, or providing that it should be done upon certain notice to be given by either party, should not be disregarded. If the party making the case ignores the order, he does so at the peril of the refusal of the court to settle and sign at a later date. If he disregards the order, or, without sufficient excuse, fails to present his case at the proper time, and the court should decline to grant him another opportunity, he would hardly be in a position to compel the court to settle and sign the case at a later time. Of the power of the court, however, to grant another opportunity, there can be no question, and having done so in this instance, and settled and signed the case upon proper and sufficient notice, this objection of the plaintiff in error must be overruled. Upon the record presented it is alleged that the judgment and decree of the court is not sustained by the evidence. This question is not before us, for the reason that it is not shown that all the evidence offered on the trial is included in the record. Such a statement is found in the certificate of the case made, but it has been repeatedly held that this is not sufficient. "Where a case is made and settled for the supreme court, and the party making it desires that it should be shown that the case contains all the evidence that was introduced on the trial, a statement to that effect should be inserted in the case itself, and not in the certificate of the judge who settles the case. Eddy v. Weaver, 37 Kan. 540, 15 Pac. Rep. 492; Railroad Co. v. Grimes, 38 Kan. 241, 16 Pac. Rep. 472; Bartlett v. Feeney, 11 Kan. 594; Brown v. Johnson, 14 Kan. 377; Insurance Co. v. Hogue, 41 Kan. -> 21 Pac. Rep. 641. For a like reason we are precluded from examining the question as to whether the pleadings support the judgment, although there is little if any contention that they do not. The record shows that the plaintiff in error concedes that, when the case was settled and signed, it did not include all the plaintiff's petition. A very important part of the same-namely, a copy of the deed upon which the bank largely rested its claim-was lacking. More than six months after the case had been settled and signed by the judge, and attested and filed by the clerk, the case made was opened, and what purports to be a copy of the deed has been inserted and attached to the petition of the plaintiff. Counsel for the plaintiff in error say that at the time the case was prepared the exhibit in some manner became detached from the petition, and could not be found by the clerk, and was therefore not copied, but having since found the exhibit it has been copied and attached to the record. There was no authority for or propriety in that action. While it seems to have been thought that no wrong could be committed in adding the exhibit to the case made, yet, when it was settled, signed, and attested, it was as sacred, and should have been as carefully protected from alteration or mutilation, as any record in the office of the district clerk. After that time the judge of the district court, even, is pow erless to amend or change the case made, and much less has any other officer of the court, or a party to the action, or any one else, the right or authority to alter or add to such record. It has been decided that "neither the judge of the district court nor the supreme court can amend or add to a case made for the supreme court after it has been settled, signed, and attested." Graham v. Shaw, 38 Kan. 734, 17 Pac. Rep. 332. It is admitted that the case made has been materially changed since it was attested and filed, and, not being the case which was settled and signed by the judge, it is not entitled to consideration. The judgment will be affirmed. All the justices concurring. (42 Kan. 327) for the improvement of said road, as petitioned for, as provided for in section 3, c. 214, Laws 1887; that on the 5th day of July, 1888, the surveyor filed with the board his report of the survey, with profile map and specifications as directed; that on the 1st day of October, 1888, application was duly made to the board to have appointed road commissioners for the improvement of said road, as prescribed by the statute, but that the board refused, and still refuses, to appoint said commissioners. The board, for their answer and return to the alternative writ, say: First, that the petitioners have a plain and adequate remedy at law in this: That any one of them, or all of them, have the right to appeal from the order of the board refusing to appoint commissioners; second, the board refused because there was not a sufficient amount of money in the general fund to pay the current expenses of the county and make such improvements on 1. An answer in the return of the board of said road, and that the levy to meet curcounty commissioners to an alternative writ of rent expenses of the county was so large mandamus, commanding them to appoint commis- that, if they made a levy to make the imsioners for the improvement of a county road, un-provements petitioned for in addition to der the provisions of chapter 214, Sess. Laws 1887, alleging, among other defenses, "that there was not a sufficient amount of money in the general fund of the county, to pay the current expenses of the county and make such improvements on said road, and that the levy to meet the current expenses of the county was so large that if they made a levy to make the improvements petitioned for, in addition to the levy to meet current expenses, it would exceed the limit allowed by law, or, if the amount of the levy to meet current expenses was reduced in order to allow the levy for such improve ments, there would not be sufficient funds to meet current expenses, " is a good return to the alternative writ, and it is error to sustain a demurrer MILLER et al., County Commissioners, V. the levy to meet current expenses, it would exceed the limit allowed by law, or if the amount of the levy to meet current expenses was reduced, in order to allow the levy for improvements, there would not be funds sufficient to pay the current expenses; third, that the board was advised and believed that the law of 1887, providing for the improvement of county roads, was unconstitutional; fourth, that there was quite a number of petitions presented to the board under the law of 1887 that came up for action at the same time as this petition, and to make the improvements petitioned for 2. When it is sought to enforce, by mandamus, by all to be made would more than exhaust the performance of a public duty by an officer of the general fund of Shawnee county. To the county, that is coupled with the expenditure of this return there was a special demurrer filed the general fund of the county, the alternative as to each answer, and this demurrer was writ ought to allege that there was sufficient mon- sustained. Standing on their return, the ey belonging to the particular fund that could le-board bring the case here for review. Nugally be appropriated to the purpose. thereto. (Syllabus by Simpson, C.) Commissioners' decision. Error from district court, Shawnee county; JOHN GUTHRIE, Judge. Charles Curtis, for plaintiffs in error. Harris & Henry, for defendant in error. merous questions are discussed in the briefs of the plaintiff in error. Among them is that of the unconstitutionality of the legislation of 1887, the insufficiency of the petition in not particularly designating the kind of road, whether state or county, and some other alleged errors. We think that when a writ of mandamus SIMPSON, C. At the relation of the coun- is applied for against the board of county ty attorney of Shawnee county, an alter- commissioners, for the performance of a native writ of mandamus was issued out of public duty, that is accompanied by the exthe district court of Shawnee county on the penditure of public money out of the gener14th day of November, 1888, directed to the al revenue fund of the county, or any speboard of county commissioners of said coun- cific fund, the alternative writ is fatally dety. It recited that on the 12th day of May, fective if it does not allege that there is a 1888, H. D. Rice filed with the said board of sufficient amount of the specific or general county commissioners a petition signed by fund that can be appropriated to the pura majority of the resident landholders with- pose. The alternative writ in this case does in one-half mile on either side along the line not contain such an allegation. The anof the county road on the township line be-swer to the writ does allege that there is tween townships Nos. 11 and 12, of range not a sufficient amount of money in the gen16, in said county, asking for the improve-eral fund to pay the current expenses of the ment of said road between the points enu- county and make such improvements. To merated therein, and the assessment in pay- this defense there was a demurrer interment thereof to be made for five years, in posed, and the truth of the answer admitted accordance with the provisions of chapter by it. The theory upon which the demur214, Laws 1887; that upon the filing of said rer was sustained by the court below must petition the said board caused an entry to have been that the legislature of 1887 did be made on their journals, commanding the not require any immediate payment of moncounty surveyor to make an accurate sur-ey out of the county treasury. It seems to vey and careful estimate and specifications us that the act in question contemplates restraining said plaintiff B. et al. from carrying on their said business." Held, that the complaint was show the acts sought to be restrained, and whether not objectionable on general demurrer as failing to the injunction restrained defendants from commission of the acts referred to in the undertaking. 3. A preliminary injunction was first issued, and afterwards the court ordered the injunction dissolved, unless defendants should give an undertaking in a much larger sum, which was given. It reditioned "in case said injunction shall issue," etc. The complaint in the action on the undertaking aling of the order requiring a further undertaking, and that in compliance with such order, "and in order to continue in force said injunction," the undertaking in suit was given. The answers to be filed, and averred that plaintiffs in the indenied that defendants caused the undertaking junction suit caused it to be filed, and further averred that defendants had no knowledge of the "order and character" of the prior proceedings in the suit. Held, that if defendants executed the undertaking for the purpose mentioned, it is immaterial whether they or their principals caused it to be filed; also that, as the undertaking recited to take notice of the order, and character of the the pendency of the suit, defendants were bound proceedings therein; and therefore that the pleadings admitted that the undertaking was given to continue in force the injunction previously issued, and defendants could not contend that the words "shall issue" in the undertaking referred to a final injunction in the suit. cited the commencement of the suit, and was con that the improvements of the public roads | given "in order to continue in force said injunction made under its provisions shall be paid for in the following manner: First, the fees of the county surveyor for a survey of the road, the estimate of the cost, and the specifications of the improvement, and the map showing the several tracts of land within one-half mile on either side of the proposed improvements, at the end of the quarter within which the services are rendered by the surveyor; second, the per diem of the commissioners and superintendent under sections 4-7 of the act. It is not now neces-leged the granting of the injunction and the maksary to decide whether the one-third of the cost of the improvement, to be paid out of the general fund of the county, means an immediate payment on the completion of the work, or that it can be paid in installments, at such times as may be designated in the petition, for the reason that the other payments above recited are plainly directed to be made out of the county funds as soon as the services are rendered. These cannot be postponed for future levies and collection. Hence the performance of the duty must be accompanied by a provision for the payment of these necessary expenses, and, as it is alleged in the answer that there is not sufficient money that can be appropriated to these purposes, a good defense was pleaded. See State v. Commissioners, 39 Kan. 700, 18 Pac. Rep. 952. In this view it is not necessary to notice the very vigorous attack upon the validity of the act of 1887. There was error in the order of the court below in sustaining the demurrer to the answer, and because of it we recommend that the case be reversed, and remanded to the district court of Shawnee county for further proceedings. 4. Civil Code Cal. § 2837, provides that in interpreting the terms of a contract of suretyship the same rules are to be observed as in the case of other contracts. Section 1643 requires that a contract be interpreted so as to make it capable of being carried into effect, if it can be done without violating the intention of the parties. Held, that tion, Code Civil Proc. providing only for undertakas no undertaking could be required on final injuncings on preliminary injunctions, the words "shall issue, "in the undertaking, must be construed under tinued in force." PER CURIAM. It is so ordered; all the jus- these Code provisions as meaning "shall be contices concurring. 1. In an action against the sureties on an undertaking on a preliminary injunction, the complaint alleged the pendency of the injunction suit, and the making of an order requiring an un dertaking conditioned that said sureties on said undertaking would pay to the said parties en joined, all damages that they might sustain by rea son of said injunction, if said court should finally decide that said A. and M. were not entitled to the same; said damages not to exceed $10,000. It then alleged that an undertaking had been given in compliance with said order, and annexed the undertaking as an exhibit, making it a part of the pleading by reference. Held, that this was a sufficient showing of the terms of the contract of the sureties, and the condition on which their liability was to arise, and that it was not necessary to set forth the nature of the obligation. 2. The complaint also alleged that the business of the defendants in the injunction suit was the removal of dead animals, and "trying out dead animals, and selling the oil, bones, hides, and other products." It then alleged that an injunction was issued, which was annexed and referred to, "enjoining and restraining said plaintiff B. et al. from carrying on said business, as in said injunction particularly expressed." The injunction restrained defendants "from maintaining your certain orderboxes mentioned in the complaint, * * * and from removing, or in any manner interfering with or disposing of, any dead *** cattle, within the limits," etc. The undertaking was * * * 5. Plaintiff can recover for profits which he would have made had he not been prevented by the injunction from carrying on his business. 6. The sureties on an undertaking on a preliminary injunction are not liable for losses or counsel fees accruing after the final decree making the injunction perpetual, as a preliminary injunction is merged and ceases to have effect when a decree for perpetual injunction is rendered. such losses, it would be, to that extent, inoperative, 7. Even if the undertaking expressly covered as Code Civil Proc. Cal. provides only for an undertaking on the preliminary injunction, and any statutory undertaking beyond what is required by statute is void. 8. The sureties are not liable for loss of profits or counsel fees incurred or expended before the giving of the undertaking, nor for counsel fees expended in defense of the suit, but only those expended solely or principally in procuring a dissolution of the injunction. Commissioners' decision. Department 1. Appeal from superior court, city and county of San Francisco; JOHN F. FINN, Judge. Action by W. P. Lambert against J. L. Haskell and Christian Westphal, on an injunction bond. Judgment for plaintiff, and defendants appeal. C. H. Parker and R. Percy Wright, for appellants. Lloyd & Wood, for respondent. HAYNE, C. Action against the sureties on an undertaking on a preliminary injunction. Verdict and judgment for plaintiff. Defendants appeal from the judgment, and from 2 order denying their motion for a |